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4-Patents: Patent on too-human hybrid denied

------------------------------- GENET-news -------------------------------

TITLE:  Patent on too-human hybrid denied
SOURCE: Associated Press / Washington Post, USA, by
DATE:   13 Feb 2004

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Patent on too-human hybrid denied

WASHINGTON -- A New York scientist's seven-year effort to win a patent on a
laboratory-conceived creature that is part human and part animal ended in
failure Friday, closing a historic and somewhat ghoulish chapter in
American intellectual-property law.

The U.S. Patent and Trademark Office rejected the claim, saying the hybrid
-- designed for use in medical research but not yet created -- would be too
closely related to a human to be patentable.

 Paradoxically, the rejection was a victory of sorts for the inventor,
Stuart Newman of New York Medical College in Valhalla, N.Y. An opponent of
patents on living things, he had no intention of making the creatures. His
goal was to set a legal precedent that would keep others from profiting
from any similar "inventions."

But in an age when science is increasingly melding human and animal
components for research -- already the government has allowed many patents
on "humanized" animals, including a mouse with a human immune system -- the
decision leaves a crucial question unanswered: At what point is something
too human to patent?

Officials said it was not so difficult to make the call this time because
Newman's technique could easily have created something that was much more
person than not. But newer methods are allowing scientists to fine-tune
those percentages, putting the patent office in an awkward position of
being the federal arbiter of what is human.

"I don't think anyone knows in terms of crude percentages how to
differentiate between humans and nonhumans," said John Doll, a deputy
commissioner for patents. Yet neither is the office comfortable with a
"we'll know it when we see it" approach, he added: "It would be very
helpful ... to have some guidance from Congress or the courts."

 The Newman case reveals how far U.S. intellectual-property law has lagged
behind the art and science of biotechnology. The Supreme Court has
addressed the issue of patenting life only once, and that was 25 years ago.

It also raises profound questions about the differences -- and similarities
-- between humans and other animals, and the limits of treating animals as

Newman's application, filed in 1997, described a technique for combining
human embryo cells with cells from the embryo of a monkey, ape or other
animal to create a blend of the two -- what scientists call a chimera.
That's the Greek term for the mythological creature that had a lion's head,
a goat's body and a serpent's tail.

Others had used similar methods to create a "geep," part goat and part
sheep. But Newman's human-animal chimeras would have greater utility in
medicine, for drug and toxicity testing and perhaps as sources of organs
for transplantation into people.

In collaboration with Jeremy Rifkin, a Washington biotech activist and
president of the Foundation on Economic Trends, he challenged the patent
office: Issue the patent, which would keep others from pursuing such work
for 20 years, or reject it, effectively accomplishing the same thing.

The two had until Friday to appeal the latest rejection, but they decided to
let it pass and declare victory.

For Rifkin, the case was deja vu in reverse. When U.S. scientist Ananda
Chakrabarty applied for the first patent on a living organism -- a
genetically engineered bacterium able to digest oil spills -- the case
ended up in the Supreme Court because the patent office did not want to
patent life forms. That time Rifkin filed the main amicus brief supporting
the patent office.

They lost. In a 5 to 4 decision, the court declared that patents could issue
on "anything under the sun that is made by man."

The office has obliged, issuing patents on bacteria, yeast and, as of last
fall, 436 animals.

European NGO Network on Genetic Engineering

Hartmut MEYER (Mr)
In den Steinaeckern 13
D - 38116 Braunschweig

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