The title may sound absurd, but the practice of patenting a microorganism is done frequently in the science and food industry. In fact, food scientists have been patenting various strains of yeast for over 150 years, specifically for use in brewing and baking. Like any other invention, the microorganism created must follow all patent rules, including that it’s unique, useful, and that the holder of the patent is competent enough to make use of the invention.
If you’re a scientist who is familiar with microorganisms, finding a microorganism to patent is most likely going to be the hard part. Patentable microorganisms can be found in the natural world or they can be genetically engineered. The most important part of obtaining a patent is to a) find a way to isolate and grow the microorganisms and b) to find a practical application for it. You’ll also need to describe in your patent application how a scientist can reproduce your microorganism, which might be difficult to explain. If you are genetically altering a microorganism that’s known, describing the process to do this isn’t too difficult. However, if you’re introducing a brand-new microorganism, the rules are different. What’s more, is that you’ll need to send a sample of the microorganism to the International Depository Authority (IDA).
There are rules that you must follow if you plan to make a deposit. First, you must give the sample to the IDA prior to submitting your patent application. When you do send the deposit off, be sure to check the customs requirements for the country you are sending the sample to. Be extra sure that the sample is viable and stays that way: filing the patent could take extra time if the IDA receives a bad sample. In addition, some countries require that you add information about IDA’s sample tracking number on your patent application.
Once your deposit is filed with the IDA, it has specific protections. Each country’s rules about who can access or obtain information about the sample vary. Some require the individual or organization that’s looking to use details of the patent must have credentials that prove that he or she will be able to use it practically.
While the above may sound straightforward, the future of biotechnological patent law may require deposit rules to change. With genetic engineering becoming more ubiquitous and the advent of bioprocessing, IDA deposits are being done at a rapid rate. The regulations in Japan and in the United States are currently different from those in Europe, and efforts have been made in recent years to solidify an international method for depositing microorganisms. ‘The Budapest Treaty: Code of Practice for IDA’ was developed in 1998 to attempt to clarify how IDAs should operate and handle different kinds of living samples for patents. Unfortunately, the efforts to make changes worldwide haven’t been completed yet.
In addition, if you live in a country that is not a part of the Budapest Treaty, you’ll need to find out what your own country’s rules are for making deposits. Not all countries are a part of the Treaty, including some countries with very active scientific industries, like Taiwan. More information about the Budapest Treaty can be reviewed at the World Intellectual Property Organization website. A guide for the inventor of a microorganism can also be found there.