DNA Origami, Counterfeiting, and the Myriad Decision

By Amelia Wong

DNA origami involves designing tiny nano-robots out of a hybrid of DNA, antibodies, and metal groups of atoms. The nano-robots then “fold” the DNA into shapes, forming cancer-fighting drugs or repairing cells.

DNA origami is based on DNA’s ability to self-assemble into a double helix.  The information stored in DNA is made up of four chemical bases which pair up with each other automatically: A’s recognize T’s and G’s recognize C’s.  When a base, sugar, and phosphate join together, they form a nucleotide.  Nucleotides are arranged in two long strands that form a double helix.  However, if designed correctly, single strands of DNA can be created that will bind to each other to form unique shapes.

For example, scientists have previously used DNA to write out words, create spaceships from DNA bricks, and store all of Shakespeare’s sonnets in the genetic code.  Recently, Arizona State University chemistry doctoral candidate Dongran Han and his team created a wireframe structure from several strands of DNA that can fold into shapes like corkscrews, spheres, and scissors.  Han believes that DNA origami can someday move towards creating self-assembling robots in the body, tiny chemical factories, or molecular electronics if a standard way of building shapes is conceived.

I was first exposed to DNA origami when discussing 3D printing with Meng Chen, a freelance designer for Francis Bitonti Studio, the studio that co-designed the first 3D printed dress.  3D printing is designing with a computer and printing out small customizable objects out of desired materials (aluminum, titanium, plastic, and more).  Chen mentioned that she was inspired by Han when Han’s team visited Chen’s architecture class at MIT to discuss a design competition, and believed that the DNA origami concept was similar to the layering design of 3D printing.

“DNA origami is a similar idea to 3D printing at nanoscale for biomed applications, except you design a DNA sequence that can be assembled in a lab and will fold into a desired shape,” said Chen.

As 3D printing has been making big splashes, garnering supporters and critics (claiming that 3D Printing is merely a hype), in the intellectual property world, DNA origami may have similar effects.  The biggest question legal scholars have been asking about 3D printing is whether it has the ability to completely undermine the intellectual property system – copyrights, trademarks, and patents through infringement and counterfeiting, because 3D printing allows the user to print whatever he or she desires out of a selection of materials, and eventually aims to be accessible by all.

If DNA is a material to be customized to fit differing structures, DNA may face the same counterfeiting (creation of fake genes that may not serve any purposes, or even with negative effects) and infringement questions. But due to the complexity of the technology and development of DNA, it is unlikely DNA origami will face the problems on such a large scale as 3D printing. Unlike 3D printing, DNA origami is not meant to be completely accessible to the public, but rather a technology to be used by a specific group of researchers and scientists.

Even if DNA origami will not have large-scale problems, it still faces strong tensions raised by Association for Molecular Pathology v. Myriad Genetics. In Myriad, the Supreme Court decided whether DNA sequences in genes were patentable.  On June 13, 2013, the Supreme Court in a unanimous decision decided that naturally occurring DNA and other biological materials are not patentable material. But, the biotechnology firm in Myriad had invested in and researched genes, some of which were isolated (allowing scientists to patent their methods, but not genes themselves) and others containing synthetic material. The Supreme Court held that genes are not patentable because genes are naturally occurring, which leads to confusion over whether the DNA origami nano-robots or compounds will be patentable, depending on method or synthetic material. Lack of patentability of DNA origami could cause problems of ownership and lack of incentive to invent.

Ultimately, the Supreme Court recently held that “naturally occurring” DNA was not patentable subject matter, but cDNA was patentable because it was not naturally occurring. Justice Scalia interestingly concurred that his knowledge of science did not allow him to completely agree with the ruling on natural DNA, but agreed with the briefs on cDNA. The decision caused some outrage among the biology and medical community, the major complaint being that the Myriad ruling would invalidate many isolated gene patents – potentially millions of dollars of research, and create confusion of patentable subject matter.

In my opinion, the Myriad ruling did not change much.  Although gene isolation patents are now invalidated, the United States Patent and Trademark Office has moved towards stricter rules of subject matter and what one can claim because of the rise of patent litigation.  Although some may argue that this ruling is very personal, and that the Myriad decision means that a company cannot own rights to genes in a person’s body, I believe this argument is a gut emotional response, a reaction to people feeling that companies can invade and own their personal bodies.  On the positive side, a company’s inability to own naturally occurring gene patents will increase innovation – for scientists to create new things for the purpose of innovation.

However, Myriad also creates a problem. Because corporations are now unable to obtain patents for their naturally occurring gene inventions, corporations may instead hide these inventions.  Due to the weakening of the patent system, corporations may turn to trade secrets (such as the Coca-Cola formula) to protect their research and development for the purpose of maintaining a steady revenue flow.

DNA origami brings up interesting questions of intellectual property.  Due to similarities to 3D printing and the Myriad decision, DNA printing will likely be modeled after both of these topics.  However, the legal system must adapt with the changing technology for both the inventors and people.

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