The Washington Post reported that the USPTO rejected a patent on a human hybrid. Stuart Newman of New York Medical College tried to patent a hybrid designed for use in medical research but not yet created. The USPTO stated that the hybrid would be too closely related to a human to be patentable. The inventor wanted to set a legal precedent barring patents on human-like clones. The rejected patent 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 chimera.

While I think this is an interesting exercise, it seems more like a publicity stunt since it doesn’t really settle anything. The PTO already allows patents on humanized animals, e.g., a mouse with a human immune system so the decision doesn’t make it clear when something is too human to patent or even what test would be employed to determine if something is too human.

See, for example, the patent on a humanized mouse, U.S. Pat. No. 6,060,643, which claims a genetically immunodeficient rodent comprising exogenous cells, wherein the exogenous cells consist of human hematopoietic cells, wherein the peripheral blood of the immunodeficient rodent contains T-cells of human origin which is at least 20%.

In the article, John Doll, a deputy commissioner for patents, admitted, “I don’t think anyone knows in terms of crude percentages how to differentiate between humans and nonhumans.”

But, this shows how far technology has advanced since Ananda Chakrabarty’s 1980 Supreme Court case held that a patent could be issued on “anything under the sun that is made by man” including his bacteria (Microorganisms having multiple compatible degradative energy-generating plasmids and preparation thereof, U.S. Pat. No. 4,259,444).

In 1988, when the Patent and Trademark Office issued its first animal patent to the transgenic mouse known as the “Harvard Mouse.” (A transgenic non-human mammal all of whose germ cells and somatic cells contain a recombinant activated oncogene sequence introduced into said mammal, or an ancestor of said mammal, at an embryonic stage. (U.S. Patent No. 4,736,866)

Some of the reasons cited for rejecting the patent were that it would be “inconsistent with the constitutional right to privacy” and could also conflict with the 13th Amendment’s prohibition against slavery although these arguments don’t make total sense without any guidelines as to what constitutes “too human” to trigger these issues.

I believe that we will eventually need Congress to step up to the plate and set out some guidelines for not only what is patentable but what is legal period. Unfortunately, when Congress acts, they tend to listen too much to loud cries by non-scientists who overreact to all things that sound like they came from a bad science fiction novel.

See the article here.

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