When you cross DNA nucleotides with the zeros and ones of digital bits, who owns what?

In 1995 Craig Venter and his colleagues at the Institute for Genomic Research (TIGR) became the first to sequence all the A, G, C and T nucleotides in the genome of a free-living organism--the bacterium Hemophilus influenzae, which causes ear and respiratory infections. Human Genome Sciences (HGS), a major biotechnology firm with which TIGR was affiliated at the time, applied for a patent not just on the sequence of nucleotides in the DNA itself but on any "computer-readable medium having recorded thereon the nucleotide sequence."

In essence, the application asked for a patent on the exclusive use of the computer code representing the germ's genetic code. The patent, which is still pending in the U.S. and elsewhere, represents a "fundamental departure" from previous practice, wrote biotechnology law scholar Rebecca Eisenberg last year in the Emory Law Journal: "By claiming exclusionary rights in the sequence information itself, if stored in a computer-readable medium, HGS seeks patent rights that would be infringed by information storage, retrieval and analysis rather than simply by making, using or selling DNA molecules."

HGS and at least one other company have filed similar applications on other genomes, but it is highly uncertain that the U.S. Patent and Trademark Office will approve them, as it has repeatedly tightened rules to prevent patenting of genes for which there are no clear-cut uses. Even if these patents are denied, though, the blurring of distinctions between molecular and digital information is very likely to continue. Companies might seek protection for the code of a three-dimensional computerized representation of a receptor on a cell. And patents related to information gleaned from gene chips--which use segments of DNA as detectors to determine the presence of genes expressed in a given sample--pose similar dilemmas.

Such patents would have potentially far-reaching consequences. If accessing a patent on the Internet were to constitute an infringement, this would go against the fundamental quid pro quo on which patent law is based, Eisenberg contends.

The holder of a patent gets a 20-year monopoly on the right to make, use and sell an invention in exchange for revealing information about both its manufacture and usage. Access to this information promotes the free exchange of ideas essential to technological progress. "If the terms of the traditional patent bargain are altered to allow patent holders to capture the informational value of their discoveries," Eisenberg writes, "the bargain becomes less attractive to the public." Others cannot avail themselves of information needed to enhance the state of the art.

If DNA as information exceeds its value as a tangible molecule, it may be necessary to find some other intellectual-property protection for it. Patenting the zeros and ones representing As, Gs, Cs and Ts won't cut it.

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