If the scientists who genetically modified the lactobacillus bacterium asked me if I thought they could patent the bacterium I would say (after telling them that I am just a law student), “I think you have a really good chance based on the criteria set out in Diamond v. Chakrabarty.” Remember in that case, the scientist was able to patent a bacterium from the Psuedomonas genus. The court found that because the bacterium was genetically modified and was different from any other bacterium found in nature, it was the scientist’s own handiwork, and not nature’s.
In the same vein, the scientists who have genetically modified lactobacillus to recognize and bind to HIV are creating a phenomena that does not occur in nature. In addition, the genetic modification makes a significant change to the bacterial species. Meaning, if you take the genome of the lactobacilli that occur freely in nature, and you take the modified lactobacillus genome, the two would be different in a significant way. The other two factors are straightforward: yes, the bacterium has been put to a different use (preventing HIV infection) and yes the bacterium’s range of utility has been enlarged. The utility is enlarged because instead of just performing its typical function, producing lactic acid in the vaginal tract and thus decreasing the pH, the bacterium will help fight HIV. Although, a lower pH is helpful to keep bacteria that would be harmful in a more alkalinic environment at bay, quenching HIV and preventing it from binding to T-helper cells is much different.
Lastly, whether the bacterium is a “new” microbe would be question that could only be answered with more scientific research, and of course the Court’s blessing. The term “new” is more ambiguous but it is a topic that is ripe for litigation. (I would be more than happy to argue in front of the Court that the bacterium is “new” in this case…in about two more years). So…yes…feel free to contact me scientists! :).
Summary of analysis using Diamond:
◾Has the bacterium/microbe obtained a different use? Most likely yes.
◾Is it a new bacterium/microbe? Maybe.
◾Has any change to the bacterial/ microbial species been made? Most likely yes.
◾Has the bacterium’s range of utility been enlarged? Most likely yes.
Up to date summary of the experiment: