GENET archive


4-Patents: U.S. ruling aids opponents of patents for life forms

mailinglist genet-news
-------------------------- GENET-news ---------------------------

TITLE:  U.S. ruling aids opponents of patents for life forms
SOURCE: Washington Post, by Rick Weiss
DATE:   June 17, 1999

----------------- archive: ------------------


The U.S. Patent and Trademark Office has turned down a
scientist's controversial request for a patent on creatures that
would be part animal and part human--bizarre life forms that no
one has made before, but that might prove useful in medical
experiments. But unlike most patent office rejectees, the
scientist, Stuart Newman, is celebrating. The New York Medical
College biology professor never intended to make the animal-human
hybrids. He applied for the patent to gain the legal standing to
challenge U.S. patent policy, which allows patents on living
entities. The patent office ruled in part that Newman's invention
is too human to be patentable. By doing so, it opened the door to
a series of legal challenges available to all patent applicants-
a path that could lead to the Supreme Court.

Newman hopes his appeals will force a judicial and congressional
reassessment of the nation's 19-year-old policy of granting
patents on life forms. That policy, based on a single court
decision, has provided the foundation for today's $13 billion
biotechnology industry. Some patent experts this week criticized
Newman for "abusing" the federal patent review system to bypass
the legal avenues by which patent law is normally made and
changed. But even some critics confirmed that the strategy
appeared to be working. In particular, said John Barton, a patent
specialist at the Stanford University School of Law, the ploy has
forced the patent office to acknowledge the relatively thin legal
ice upon which its policies on life patents rest. The ruling also
reveals the agency's apparent uncertainty about just how human a
creature must be before it is no longer patentable, Barton and
others said.

The patent office has argued that to grant patents on people
would violate the 13th Amendment to the Constitution, which
abolished slavery. But neither the patent office nor Congress has
ever defined "human." That question is of more than philosophical
import today. Already, several patents have been allowed on
animals containing human genes or organs. And just this week,
scientists in Massachusetts said they were creating live embryos
by combining cow and human cells. "When we applied for this
patent a year and half ago, people reacted to it as if it was
some kind of science fiction scenario," Newman said.
"Developments in the past year have shown that similar things are
already on the table and being considered seriously." 

In its rejection letter, the patent office says Newman's
invention "embraces" a human being, but it does not say why other
creatures with human components do not "embrace" a human being,
said Washington patent attorney Patrick Coyne, who filed Newman's
application. "This puts a big question mark on all commercial
interests involving human embryos and embryonic . . . cells,"
said biotechnology activist Jeremy Rifkin, a co-applicant on
Newman's claim, who has rallied religious leaders against patents
on life forms. The agency concedes in its letter that in the
Supreme Court's single foray into the topic--a 5 to 4 decision in
1980 allowing a patent on a microbe--the justices did not include
humans on their list of nonpatentable life forms. But Stephen
Kunin, the patent office's deputy assistant commissioner for
patent policy, said the agency "believes" that Congress did not
intend to allow patents on humans or on creatures that are
essentially human when it passed the National Patent Act in 1956.
The agency, however, offers no basis for that belief, Coyne said. 

Biotechnology executives have said that without access to patents
on gene-altered animals and other living entities, they would not
make the investments needed to develop new drugs and other
products. Yesterday, some criticized Newman's legal attack. "The
net outcome of this attempt may hurt valuable medical research
and ultimately deny therapies for patients who need them," said
Carl Feldbaum, president of the Biotechnology Industry
Organization. Undaunted, Newman yesterday filed an appeal to the
patent office. "Private ownership of inventions is not the only
way progress has been made in the history of science and the
history of medicine," Newman said.

-| Hartmut Meyer
-| Co-ordinator
-| The European NGO Network on Genetic Engineering
-| Reinhaeuser Landstr. 51
-| D - 37083 Goettingen
-| Germany
-| phone: #49-551-7700027
-| fax  : #49-551-7701672
-| email:

Genet News