4-Patents: U.S. Patent Office granted patent on human reproductive cloning

[GENET <genetnl@xs4all.be>]

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                                  PART I
-------------------------------- GENET-news --------------------------------

TITLE:  THE U.S. PATENT OFFICE (PTO) HAS GRANTED A PATENT ON HUMAN
        REPRODUCTIVE CLONING AND THE EMBRYOS, FETUSES AND CHILDREN THAT
        WOULD BE CREATED THROUGH THAT PROCESS
SOURCE: Patent Watch, USA
        http://www.icta.org/intelprop/temp.htm
DATE:   May 16, 2002

------------------ archive: http://www.gene.ch/genet.html ------------------


THE U.S. PATENT OFFICE (PTO) HAS GRANTED A PATENT ON HUMAN REPRODUCTIVE 
CLONING AND THE EMBRYOS, FETUSES AND CHILDREN THAT WOULD BE CREATED THROUGH 
THAT PROCESS.

PATENT WATCH ALSO DISCLOSES THREE PENDING PATENTS WHICH WOULD INCLUDE 
CLONED HUMAN EMBRYOS AND FETUSES

Washington D.C. - Patent Watch, a public interest oversight group, 
announced today that it had uncovered a patent on human reproductive 
cloning and any "products" created by that process, theoretically including 
embryos, fetuses and children. The patent, U.S. Patent No. 6,211,429, was 
granted on April 3, 2001, but went unnoticed until Patent Watch discovered 
that the claims were applicable to human reproductive cloning. The owner of 
the patent is the University of Missouri, but financial interest in the 
patent is shared by a Massachusetts biotech company Biotransplant Inc.
READ OUR EXECUTIVE SUMMARY HERE. <http://www.icta.org/intelprop/
HumanPatentExecSumm.pdf>

Patent Watch also revealed today that it had uncovered three pending 
patents currently before the PTO that cover cloned human embryos and 
fetuses.

* Patent application serial number 09/816,971, by scientists including Ian 
Wilmut, which claims a "reconstituted animal embryo" described as having 
"its main use in . . . mammalian embryos, particularly ruminant, human, or 
primate embryos;"

* Patent application serial number 09/755,204, assigned to the Univ. of 
Connecticut, claiming any "animal" embryo made by a cloning process; and

* Patent application serial number 09/828,876, assigned to the Univ. of 
Massachusetts and exclusively licensed to Advanced Cell Technology, 
claiming a mammalian "fetus obtained according to" a particularly specified 
cloning process. This patent application specifically contemplates the use 
of human tissues derived from cloned human embryos, fetuses, and offspring, 
for transplantation purposes.

Commenting on the pending patents Patent Watch Project Director Peter 
DiMauro stated, "In deciding on these patents the PTO will be making an 
historic decision on the commodification of human life. They should reject 
these patents as violation of public policy." The PTO has the legal 
authority under both national and international law to reject patents that 
offend public morality or order but did not do so in the case of the 
Missouri patent. Nor does any current Congressional bill on human cloning 
halt the patenting of the process or its products.

"This is not a slippery slope, rather this an ethical and legal free fall," 
stated Patent Watch Executive Director Andrew Kimbrell commenting on the 
Missouri patent. "The Patent Office has become a ghoulish human body shop 
allowing researchers and corporations to patent and own human body parts, 
cloning processes and even human life forms," Kimbrell continued. "The 
Patent Office and Congress must move quickly to halt this commodification 
of life and to ban all forms of human cloning," Kimbrell concluded.


                                  PART II
-------------------------------- GENET-news --------------------------------

TITLE:  Debate on Human Cloning Turns to Patents
SOURCE: The New York Times, by Andrew Pollack
        http://www.nytimes.com/2002/05/17/science/17CLON.html
DATE:   May 17, 2002

------------------ archive: http://www.gene.ch/genet.html ------------------


Debate on Human Cloning Turns to Patents

The University of Missouri has received a patent that some lawyers say 
could cover human cloning, potentially violating a longstanding taboo 
against the patenting of humans.

The patent covers a way of turning unfertilized eggs into embryos, and the 
production of cloned mammals using that technique. But unlike some other 
patents on animal cloning, this one does not specifically exclude human 
from the definition of mammals; indeed, it specifically mentions the use of 
human eggs.

Those opposed to cloning and to patenting living things say the patent is a 
further sign that human life is being turned into a commodity.

"It is horrendous that we would define all of human life as biological 
machines that can be cloned, manufactured and patented," said Andrew 
Kimbrell, executive director of the International Center for Technology 
Assessment, a Washington group that has long opposed patenting of living 
things and also wants to ban all human cloning.

The patent was issued in April 2001, but attracted no attention until Mr. 
Kimbrell's group ran across it recently.

Senator Sam Brownback, the Kansas Republican who has been a leading 
opponent of human cloning, said he intended to introduce a bill to prohibit 
patents on human beings and human embryos, which he said were "akin to 
slavery."

"I think the patent office will appreciate having that clarity, given the 
applications that are coming into the patent office," Mr. Brownback said.

That bill would be separate from a bill the senator is already sponsoring 
that would prohibit all human cloning. The Senate is debating how 
extensively to ban human cloning, but none of the bills it is considering 
deal with the patent issues.

The patent also illustrates the tricky legal and ethical issues the United 
States Patent and Trademark Office is confronting as scientists race to 
develop cloning and to grow human tissues to treat disease. Mr. Kimbrell 
said he had found a few other patents that had been applied for but not 
granted that might cover human cloning.

The United States has been more liberal than most other countries in 
granting patents on living things, ever since a Supreme Court decision in 
1980 that allowed the patenting of a microbe genetically engineered to 
consume oil spills. There are patents on complete animals, like a mouse 
genetically engineered to be prone to cancer. There are patents on human 
genes and human cells. The University of Wisconsin has a patent on human 
embryonic stem cells, which are cells taken from human embryos that have 
the ability to turn into any other type of tissue.

But the patent office has drawn the line on patenting of humans or human 
embryos themselves, saying it would not be constitutional. Many experts say 
this is because such patents would violate the 13th Amendment ban on 
slavery. Brigid Quinn, a spokeswoman for the patent office, said the agency 
was not using the 13th Amendment argument anymore but was not granting 
patents on humans because it had not received any guidance from Congress or 
the courts saying it should do so.

The result has been that many patents that conceivably could cover humans Ñ 
like on cloning animals or on genetically engineering animals to produce 
drugs in their milk Ñ specifically exclude humans.

A spokesman for the University of Missouri, Christian Basi, said it 
believed its patent covered human cloning because it applied to all 
mammals. The university has licensed the patent to BioTransplant, a 
Massachusetts biotechnology company that is working on creating pigs that 
can be used as human organ donors. But the license, Mr. Basi said, covers 
only the use in pigs.

"We have absolutely no interest in using this to research humans and we 
will not license this technology to anyone for use in humans," Mr. Basi 
said, suggesting that the patent could actually help stop human cloning. 
"This gives us control of this particular technology so we will know that 
this technology will not be used in humans."

Ms. Quinn said the patent office did not comment on individual patents but 
had not changed its policy of not issuing patents "drawn to humans."

Randall S. Prather, a professor of reproductive technology at Missouri 
whose work was the basis for the patent, said the mention of human eggs 
"was put there by the attorneys and they wanted to cover all mammals."

Charles Cohen, who wrote the patent when he was a lawyer at a St. Louis law 
firm, declined to comment.

Some lawyers who have looked at the patent, No. 6,211,429, say it is not 
clear that it covers human cloning and that interpreting patents requires 
careful analysis of the patent's history. That the patent office did not 
appear to have problems with it could be a sign that the agency believes 
that the patent does not cover humans.

"You'd have to go through line by line, word by word," said Gerald P. 
Dodson, a lawyer with Morrison & Foerster in Palo Alto, Calif., who read 
the patent and said he could not reach an immediate conclusion.

Mr. Dodson and others noted that the specifications and examples of how the 
patent could be used dealt with pigs and cows.

Even if the patent does cover human cloning, some lawyers say, it would be 
a stretch to say it covers humans themselves, although the abstract of the 
patent says it covers the "cloned products."

But even a patent on the process of cloning humans could give the patent 
holder some rights over people, some lawyers said. Conceivably, for 
instance, the university could bar people created overseas by its cloning 
process from entering the country.

"It definitely is a patent for cloning a human, and under the laws we have 
right now, it might actually cover the human," said Richard Warburg, a 
patent lawyer at Foley & Lardner in San Diego who represents Infigen, an 
animal cloning company.

Dr. Rochelle Seide, a New York patent lawyer who heads the biotechnology 
practice at the law firm of Baker & Botts, said the lack of the nonhuman 
disclaimer in the Missouri patent was surprising.

"Looking at it," Ms. Seide said, "I can see where people who are against 
cloning would have a big problem with it."

Advanced Cell Technology, a company that wants to clone human embryos to 
obtain stem cells for disease treatments, licensed a patent from the 
University of Massachusetts on its method of cloning. But the patent is on 
only nonhuman embryos produced by the process, though it does seem to cover 
human cells.

It might be difficult to draw the line on what constitutes a human. George 
J. Annas, professor of health law at Boston University School of Public 
Health, said it was unclear whether the antislavery amendment would be a 
basis for denying patents on human embryos because courts, in cases like 
those involving custody of frozen embryos, have said an embryo is not a 
person.




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