Journal Article

Who invents life: intelligent designers, blind watchmakers, or genetic engineers?

Graham Dutfield

in Journal of Intellectual Property Law & Practice

Volume 5, issue 7, pages 531-540
Published in print July 2010 | ISSN: 1747-1532
Published online April 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq034
Who invents life: intelligent designers, blind watchmakers, or genetic engineers?

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Legal context

Judgments since the 1980s have confirmed that living things may be claimed in patent applications, albeit with some divergence between jurisdictions. To a large extent, such extension of the scope of patents has followed analogically from the patenting of hormones and antibiotics. The question arises of whether the analogies deployed and resultant subject matter expansionism can be justified given the current state of our knowledge of life and of highly complex living processes.

Key points

Fundamental difficulties exist in the patenting of whole life forms. These difficulties are made evident in scientific, philosophical, and theological discussion concerning the appearance of design in life and the special qualities all life forms share that differentiate them from non-living chemical compositions. Such discussion indicates that life is inherently more complex that than any human artefact, and continues not to be well understood. Discussion also points to the autonomy and extraordinary self-creativity of life forms which again suggests that inventorship claims to whole organisms may not be scientifically justifiable at present.

Practical significance

It may be time to rethink the metaphors and analogies used to justify the patenting of whole organisms. Living things are not just chemicals or machines, and are certainly not human artefacts.

Journal Article.  8492 words. 

Subjects: Arbitration ; Intellectual Property Law

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