Biotechnology Patents And Project Hail Mary: Are Space Bugs Patentable?

The cinematic release of the 2021 novel, Project Hail Mary, has received rave reviews, with audiences praising the film as a faithful and visually stunning adaptation of the book. But are the microorganisms that author Andy Weir imagined eligible for patent protection, wonders Dr Kate McNamara.

Warning: includes spoilers! 

In the 2026 film, Project Hail Mary, Ryan Gosling is cast in the lead role as Dr Ryland Grace, a junior high school science teacher involved with a space mission to save earth. Grace has limited time to solve a scientific mystery: why the sun’s energy output is diminishing. 

It transpires (spoiler alert!) that single-celled organisms, named Astrophage by Grace, are consuming the sun’s energy.

Putting aside the obvious (apocalyptic) downsides of Astrophage (the ability to cause a significant drop in the average global temperature on earth, resulting in food-chain collapse leading, ultimately, to war, famine, pestilence and death), these little space bugs could be phenomenally useful, as they have the ability to store the immense energy they absorb from the sun and then release it. The possibilities are extraordinary: they could provide a replacement for hydrocarbon-based fuel, for a start. 

But could Astrophage be the subject of a granted patent – at least under European law? 

Biotechnological inventions and the EPC 

Article 52(1) of the European Patent Convention (EPC) states that ‘European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application’.  

This sounds promising, but Art. 52(2) EPC continues by stating that discoveries shall not be regarded as inventions, with the Guidelines for Examination in the European Patent Office clarifying that ‘finding a previously unrecognised substance occurring in nature is…. mere discovery and therefore unpatentable’. So, game over then?

Well, no actually, as this paragraph within the Guidelines continues: ‘However, if a substance found in nature can be shown to produce a technical effect, it may be patentable. In addition, if a microorganism is discovered to exist in nature and to [exhibit a technical effect, for example] produce an antibiotic, the microorganism itself may also be patentable…’ 

This takes us to the relevant provisions of the EPC for biotechnological inventions, which are applied and interpreted in accordance with the so-called Biotechnology Directive (Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions).

The Directive states that, in principle, biotechnological inventions are patentable under European law, and this is the case even if they concern biological material which is isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature. 

So, Astrophage are technically patentable. But this doesn’t mean a patent application directed to Astrophage will simply be granted; the invention itself would need to be shown to be new, involve an inventive step and be susceptible of industrial application, as mentioned above. The patent application would also have to meet the requirements of sufficiency – namely, it would need to disclose the invention in a manner sufficiently clear and complete enough for it to be carried out by a person skilled in the art (Art. 83 EPC). 

Novelty shouldn’t be a problem: Although the first viewing of the microbes that are subsequently named Astrophage happens publicly, Grace is one of a select group of scientists that works on and identifies their properties. Assuming those involved in studying the Astrophage keep their results confidential prior to the filing of a patent application, the novelty requirement should be met. In addition, given the surprising benefits of Astrophage and the paucity of comparable microorganisms, demonstrating inventive step shouldn’t be a problem. 

Industrial application shouldn’t cause an issue either, given the potential uses of Astrophage.

The sufficiency point is more interesting, however. European law requires the description of a patent application to disclose any feature essential for carrying out the invention in sufficient detail to make it apparent to the skilled person how to put the invention into practice, with biological material subject to special provisions. 

Given what Grace and fellow scientists discover about Astrophage (no spoilers here), it may be possible to describe its properties in a patent application. Then again, that requires glossing over at least one property that seems to require a fundamental re-think of some established physical principles. So, whilst the beneficial property of Astrophage (immense energy storage) is known, how this is achieved arguably isn’t known, and so the Astrophage can’t be described in terms that would enable someone else to work the invention. More to the point, whilst Astrophage are arguably ‘naturally occurring’, they don’t naturally occur on earth, so a reader of the patent application couldn’t simply pop outside to obtain some, even if they could identify them by their properties.

So, to meet sufficiency requirements, a sample of Astrophage would need to be deposited with a recognised institution (as set out by the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure) before the patent application is filed, and the application would need to provide information about the deposit. As Astrophage require certain conditions for replication, these would also need to be disclosed.

Who would be named inventor? 

Who would be named as an inventor on the patent application? The initial capturing and retrieval of Astrophage results from an automated mission funded by several countries. However, Grace and at least some of his fellow scientists are responsible for discovering the properties of Astrophage, so perhaps they are the most likely inventors. 

As to who would be named as applicant on any patent application, well, that would likely be determined by national law. In the UK, for example, entitlement to an invention (and the resulting patent) typically passes from an inventor to their employer; Ryland Grace is an American, and so US law would apply. I can imagine, given their phenomenal potential, that there could be an almighty tussle over ownership of any patent relating to Astrophage (the CRISPR-Cas9 dispute comes to mind).

Then again, perhaps not: the so-called Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies), which is overseen by the United Nations Office for Outer Space Affairs (UNOOSA) and to which 118 countries, including China, Russia, the UK and the US are committed, provides the basic framework on international space law. It sets out important principles, including that space should be considered the province of all mankind; outer space is free for the exploration and use by all States; and that outer space, including celestial bodies (‘any naturally occurring physical entity or object in outer space’) is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. 

In view of this, and the collaboration between nations that results in Grace’s space mission in the first place, perhaps Astrophage would be used, without limitation, for the good of humanity. Which would make all this talk of patenting just hot air.