Patents for biological inventions

A standard patent can be obtained for isolated bacteria, cell lines, hybridomas, some related biological materials and their use, and genetically manipulated organisms. Examples of patentable inventions include:

  • isolated bacteria and other prokaryotes, fungi (including yeast), algae, protozoa, plasmids, viruses, prions
  • cell lines, cell organelles, hybridomas
  • genetic vectors and expression systems
  • apparatus or processes for enzymology or microbiology
  • compositions of micro-organisms or enzymes
  • propagating, preserving or maintaining micro-organisms
  • mutagenesis or genetic engineering
  • fermentation or enzyme using processes to synthesise a desired compound or composition
  • measuring or testing processes involving enzymes or micro-organisms
  • processes using enzymes or micro-organisms to liberate, separate, purify or clean
  • the use of micro-organisms to produce food or beverages.

Patents for genetic modification or manipulation

A standard patent can be obtained for inventions involving:

  • genotypically or phenotypically modified living organisms, for example, genetically modified bacteria, plants and non-human organisms (patenting of plant varieties is described in the plant breeder's rights section of this site)
  • isolated polypeptides and proteins.

Examples of inventions which fall under this category include:

  • synthetic DNA or nucleic acid sequences only where the genetic information does not exist in the DNA blueprint or genome of any human or other organism
  • an isolated protein expressed by a gene
  • vectors (such as plasmids or bacteriophage vectors or viruses) containing a transgene
  • methods of transformation using a gene
  • host cells carrying a transgene
  • higher plants or animals carrying a transgene
  • organisms for expression of a protein from a transgene
  • general recombinant DNA methods such as PCR and expression systems.

Patents for DNA or gene sequences

Human beings and the biological processes for their generation are not patentable.

Patents are not available for gene sequences, DNA, RNA or nucleic acid sequences that replicate the genetic information that exists in the DNA blueprint or genome of any human or other organism. This is regardless of whether the genetic material was isolated or man-made.

Although standard patents can be obtained for biological material such as micro-organisms, peptides and organelles, this material is only patentable if it has been isolated from its natural environment, or has been synthetically or recombinantly produced.

Patent specifications must also describe a specific use for a biological material. For example, although patents are not provided for genes, if the specification discloses a specific use for the gene, such as its use in a specific enzymatic reaction or industrial process, then patent protection is available for methods of using the gene.

Standard patents as they apply to biological inventions

The usual requirements for a standard patent must be met. There are also specific description requirements for micro-biological inventions, including:

  • the intervention of a technologist to produce something that differs in some way from the natural source material. A patent cannot be granted for biological materials in their natural environment. For example, a biologically pure culture of a naturally occurring micro-organism or the isolation and cultivation of a naturally occurring micro-organism would satisfy the requirement for technical intervention.
  • being new in the sense of not previously being publicly available. A patent cannot be granted for subject matter that has previously been made publicly disclosed.
  • being inventive when compared to existing technology and inventions.
  • being fully described so that sufficient information is provided to allow someone to make the product or perform the process.
  • having a demonstrated use. A patent cannot be granted for a mere discovery. The use to which the invention is to be put (for example, for the treatment of multiple sclerosis) must also be fully described. There must be an actual use for an invention rather than speculation about future uses.
Last updated: 
14 June 2016