Harvard Journal of Law and Technology Digest, Vol. 29, 2015 symposium
3 Pages Posted: 8 May 2015 Last revised: 10 Jul 2022
Date Written: May 7, 2015
Is bioprinting patentable? The U.S. Patent and Trademark Office 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 soon.
People might intuitively assume that bioprinting is not patentable because the law generally prohibits patenting human organisms. However, the answer is not so simple. This paper 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.
But should bioprinting 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.
Keywords: bioprinting, 3D printing, patent, patent-eligible subject matter, 101
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