Prehistoric Patents: A Larger Than Life Problems, 65 Million Years in the Making

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In the summer of 2015, Jurassic Park fans were treated to a new installment of the dino-disaster franchise with Jurassic World. The latest installment in the series clearly aims to expand and reestablish the Jurassic fan base by introducing a bigger, faster, and toothier retelling of the original story. It trades the tense, but constrained moments of suspense and unsettling plot reveals of the original film, for vivid high definition CGI, prolonged and highly improbable action sequences, quippy exposition, and yes, shameless winking callbacks to the original film.
The presentation of the now classic story of genetically engineered theme park attractions running amuck is not the only aspect of the franchise which has been given a 21st century facelift. The message that the new film hopes audiences will sink their teeth into is an important one for our present age of rapid technological advancement. While the original Jurassic Park warned us about how tinkering with genetic codes can go too far, the message of Jurassic World is more nuanced. It asks not whether humankind SHOULD use advanced technology to create new forms of life, but rather WHEN advanced technology is used to create new forms of life, what responsibilities should be taken for the resulting organism?
We now know the prospects of creating new organisms in the lab is not just science fiction. A great deal of research has gone into developing new organisms for use in commerce and scientific research. So far, the impacts on humanity, and our sense of responsibility for these organisms, have been minimal. Although this may, and likely should, change as scientific progress permits more complex and sophisticated organisms to be created wholly in a laboratory. This progress is spurred by patents, which grant an exclusive license to an inventor to exploit a scientific work for a statutorily designated 20 years from the date the patent was first applied for under 35 USC § 154. Because a patent holder is the only one permitted to make use of their patented invention during the statutory period, they profit exclusively from its use and exploitation. The question is, could something as sophisticated as a dinosaur, or the process of creating a dinosaur, be patented? Could something as complex as a dinosaur be considered an invention and therefore exploited for profit?
A central concept of the Jurassic Park franchise has always been that the dinosaurs at the park are not the same ones that existed 65 million years ago. These organisms are a product, created from dinosaur DNA extracted from prehistoric mosquitos preserved in amber. The extracted DNA is then combined with the DNA of frogs and other present day animals to fill in the portions of the genetic code which had degraded over time. This process creates a brand new animal, never before seen on Earth.

The short answer to whether “Dino DNA” could be patentable, is yes. Scientists could legally patent the fictional “Dino DNA” depicted throughout the Jurassic Park series.  It has long been established that a product of nature cannot be patented; this includes any biological substances found in their natural state like DNA.  However, man-made products are not similarly restricted. The U.S. Supreme Court decision in Diamond v. Chakrabarty, 447 U.S. 303 (1980), found that a bacterium, genetically engineered to consume oil, was considered patentable. The Court cited in its decision to the Congressional record that “anything under the sun that is made by man” is patentable. S Rep. No 1979, 82d Cong., 2d Sess., 5 (1952). This ruling set the stage for the patenting of any organism which owes its origin to a laboratory rather than nature. This includes genetically-engineered animals with a higher
probability of developing certain forms of cancer (the famous “Harvard Mouse”, discussed in the Canadian Supreme Court’s decision in Harvard College v Canada (Commissioner of Patents), 2002 SCC 76 (2002) and Complementary DNA, See Association for Molecular Pathology v. Myriad Genetics, 569 U. S. 398 (2013; Synthetic DNA derived from RNA is considered patentable, but not the original DNA extracted from a natural source).

In addition to DNA sequences, methods for extracting and splicing DNA, such as the methods used in Jurassic Park, are also patentable. “Ancient Microorganisms” (U.S. Patent No. 5,593,883) involves the “recovery of ancient organisms from sources such as amber and methods of isolating and culturing such ancient organisms. The invention reveals for the first time that fossilized organisms may be recovered and cultured to present viability.” “A Method of Reconstituting Nucleic Acid Molecules” (U.S. Patent No.  6,872,552 (patent ‘552)) involves recovering degraded DNA by using “a template for reconstituting degraded nucleic acids in a biological sample, nucleic acids from a genetically related or identical organism having a sequence homologous to the degraded nucleic acids.”
Dr. Ensley, the holder of patent ‘552 and the chairman of MatrixDesign, believes the first use of this method will be recovering degraded DNA samples from crime scenes or cold cases. However, this method was patented while studying DNA recovered from ancient organic remains which included extinct animals such as the marsupial wolf and ground sloth.  So far, dinosaur DNA has not been recovered from any insects fossilized in amber, but if that day comes, the technology and the patents exist to possibly bring Michael Crichton’s inspired idea for a prehistoric theme park to life.

However, what responsibility would an inventor have for a living invention? In Jurassic World, a lack of socialization with other dinosaurs and sensory deprivation caused the genetically engineered, antagonist of the film (Indominus Rex or “iRex”) to become erratic, uncontrollable, and highly dangerous. The same can happen to any wild animal under similar circumstances (as seen in the recent documentary, Black Fish; CNN Films, 2013).  If an orca becomes agitated by its captivity and injures or kills a guest, the person charged with that animal’s care, (in that case, likely Sea World), could be held accountable for the animal’s actions. Wouldn’t the same be true for the patent holder of a genetically engineered organism which causes harm or injury to others due to its neglect or improper care? What responsibility does the creator of a wholly new organism have for the care of that creature, and what, if any, duty does that inventor owe to the public if something were to go wrong?
New organisms created in the laboratory are undeniably a hot source of revenue for those who put the time and resources into engineering them. But do the inventors of these organisms realize the consequences of creating something new, with a set of instincts and motivations that may seem foreign not only to them, but to the organism itself? Can scientists and inventors take responsibility for the life that they create, and what will those responsibilities entail? These are questions which will need to be answered as technology improves and more sophisticated organisms are developed and become patent eligible. What the answers will be are unclear for now. In the meantime, aspiring geneticists might want to make a stop at their local theater before they head back into the lab.

By: Colleen Ferguson and Michael Reed

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