The history of gene patenting owes much to a 1980 Supreme Court decision concerning the patenting of a strain of bacteria.  In Diamond v. Chakrabarty, the Court decided that although naturally occurring organisms are not patentable, the strain in question could be patented because is was “an artificially made composition of matter.  This is because the bacterium has capabilities not found in naturally occurring bacterium.”  This case marked the first organism to be considered an invention by the U.S. Patent Office.

 Eight years later, the stakes of gene patenting were raised from unicellular bacteria to multicellular animals, when a Harvard biologist obtained a patent for a mouse.  He had genetically engineered this “Harvard Oncomouse” to be predisposed to cancer.  A common question regarding gene patenting is, “Why is it done?”  Truly, the utility of patenting a human gene sequence may not be immediately obvious.  Generally, a biotechnology corporation will patent a gene in order to possess the exclusive right to use the gene for research.  A patent can eliminate competition by guaranteeing that only the patent-holding corporation may use the gene, for example, to develop a cure for a disease that the gene causes.

 In the United States, federal law prohibits the patenting of biotechnology products if they are found in the human body.  Nonetheless, countless genes, including human genes, have been patented, most of the by large corporations.  In recent years, advances in gene mapping technology have led to an explosion in the number of gene-patenting attempts.  Advocates of gene patenting laud the investment capital that the industry has generated, as well as the many new jobs it has created.  While they also claim that gene patenting has led to the development of many new medications, this claim is somewhat deceptive.  One controversial aspect of federal patent law is that there is no ‘compulsory licensing’ law; such a law, which is already in effect in Europe, would require that a patent holder grant a license to anyone seeking to use the patented gene for scientific purposes.  Though gene patenting has coincided with the birth of many new medications, the absence of a compulsory licensing law has both delayed the development of many of these medications and prevented still more from appearing at all.  In this respect, gene patenting has its tradeoffs; while it does guarantee some amount of security for a corporation, it also allows that corporation to prohibit useful research.