At which point—or more precisely—at which percentage does an organism become too human to patent? Without acknowledging just how out of control US intellectual property laws have become, the US Patent and Trademark Office rejected a seven-year old attempt by Stuart Newman, a New York professor and scientist to patent a chimera. It’s important to note that Newman wanted the patent rejected, setting the precedent which would prevent other researchers from obtaining similar patents.
Whew, that was close, but it really doesn’t resolve the issue. The last (and only) time the US Supreme Court addressed patents on life was 25 years ago when, in a 5 - 4 decision, it found that patents could be issued on “anything under the sun that is made by man.” Dangerous precedent, that. Since that decision, the patent office has issued patents on 436 animals but announced in 1987 that it would not issue patents on humans. The patent office made the announcement without offering “legal rationale or statutory backing” according to Rick Weiss’s excellent article in this morning’s Washington Post.
Interestingly, the patent office cited “the constitutional right to privacy” in documents it provided to Newman in denying the patent application. From Weiss’s account:
“The paper trail created by the Newman claim offers perhaps the best explication yet for that ban. One rationale in the documents sent to Newman is that such a patent would be ‘inconsistent with the constitutional right to privacy.’ After all, the office wrote, a patent allows the owner to exclude others from making the claimed invention. If a patent were to issue on a human, it would conflict with one of the Constitution’s core privacy rights—a person’s right to decide whether and when to procreate.”
That wasn’t the only rationale used by the patent office to reject Newman’s application, of course. In 2003 Representative Dave Weldon (R-Florida) added an appropriations bill rider outlawing patents on humans or human embryos. But the privacy argument will certainly not sit well with the Bush administration and its corporate cronies.
There are already human hybrids—baboon cells are regularly used in organ transplant procedures and human heart valves are made from pigs—but the core question remains unanswered: when does an organism become too human to patent. Weiss quotes Newman’s collaborator, Jeremy Rifkin, the biotechnology activist:
“‘If the US Congress and president are not willing to do this now, then there is no door that will remain closed to an era of commercial eugenics,’ Rifkin said. ‘We’ll be on our way to that brave new world that Aldous Huxley warned us about.’”
It’s clear that the patent office is not the appropriate agency to be deciding this issue, and while Congress seems the most likely suspect to address issues like these; many scientists are concerned that Congress will overreact. They, of course, would like to see the decision in their hands—through the National Academy of Sciences. Yeah, that’s a great idea; because we all know that scientists never overreact.
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