“Patenting tends to get people’s juices flowing when you put the word ‘gene’ and the word ‘patent’ in the same sentence.”—Francis Collins
Alas, naturally occurring genes are not patentable.But what about bioprinting?
Dr. Anthony Atala recently gave two TED talks, Growing New Organs and Printing a Human Kidney, presenting that bioprinting, the3D-printing living tissues, is real and may be widely available in the near future. This emerging technology has generated controversies about its regulation; the Gartner analyst group speculates a global debate in 2016 about whether to regulate bioprinting or ban it altogether.
Another equally important issue is whether bioprinting is patentable. The U.S. Patent and Trademark Office (Patent Office) has already granted some bioprinting patents and many more patent applications are pending.Although these patents are presumed valid, their validity will likely be litigated and the U.S. Supreme Court might have to settle this issue in due course.
One might intuitively assume that bioprinting is not patentable because the law generally prohibits patenting human organisms.However, the issue is not so simple. This Article breaks down this complex issue and analyzes the patentability of bioprinting given the current landscape of patent law.
This Article concludes that bioprinting is patentable and that bioprinting process claims are easier to patent than bioprinting product claims. Current bioprinted human living tissues are functionally similar but structurally different than real human living tissues. Until scientists can bioprint structurally similar living tissues, bioprinted products are in the clear to be patent-eligible subject matter.
However, regardless of whether bioprinting is patentable, an interesting question to consider is whether bioprinting should be patentable. After weighing both sides’ arguments, this Article proposes a potential compromise: granting patents for only bioprinting process claims, not product claims. This proposal aligns well with the current landscape of patent-eligible subject matter—bioprinting process claims are being patented whereas bioprinting product claims would likely run into opposition and challenges.