Patenting Living Things, and What

¶ … patenting living things, and what the limitations are on this patenting process. There are numerous ethical issues surrounding the patenting of living things, and the morality of this practice comes into question. In short, the answer is yes, living things can be patented, but there are certain limitations on the patenting process. The ethics of this practice remain in question, however.

The commercialization of living things actually is not a new phenomenon. In fact, Louis Pasteur received a patent in 1873 for a new type of yeast that did not support disease or organic germs, and in the 1930, Congress passed a law that allowed patenting of "newly invented plants that are asexually reproduced" (Editors). Therefore, living things have been patentable for many decades, but they must be "new" and different, not the same plant or animal that already exists. For example, a mouse cannot be patented, unless it is a new strain of mouse, such as the "Harvard mouse" which was genetically engineered in the lab specifically to study some types of cancer (Editors).

In fact, the "Harvard mouse" was the first patent issued for an animal in Patent office history. Another writer notes, "In April of 1988, the United States Patent and Trademarks Office issued the first patent on a living animal in the history of the world's patent systems. Awarded to Harvard University, the patent covers a laboratory mouse that one of its scientists had genetically engineered to be supersusceptible to cancer" (Kevles). Many people adamantly oppose this type of patenting, feeling it goes against everything that is ethical and moral. Author Kevles continues, "The World Council of Churches attacked animal patenting, declaring that it 'removes the distinction between life and nonlife' and admonishing that 'the gift of life from God... should not be regarded as if it were a chemical product'" (Kevles). This is the very heart of the argument against patenting living things - it is a moral and ethical debate that frightens many people, because it literally gives God-like powers to scientists, and many worry about the continued moral and ethical judgment of these scientists.

There is another problem with the Patent law itself, and that is because it is based on archaic language and meaning. Author Kevles notes, "What is patentable according to statute dates back to the patent law of 1793, which declared, in language written by Thomas Jefferson, that patents could be obtained for 'any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement thereof'" (Kevles). However, in 1889, the Patent office turned down a patent for a material created from material in pine needles, saying that items found in the natural world could not be patented. However, in the mid-1970s, biotechnology firms were beginning to emerge, and they began applying for patents on some of their technologies. In 1980, the Supreme Court ruled that items that were created in the lab, even if they were living, were not "products of nature," and thus, they could be patented (Kevles).

This created impetus to patent all types of living things, from bacterium to the Harvard mouse, and today, patents are routinely granted on living things, seemingly without any thought. The Patent office does not allow the patenting of a human being, but in the case of the law on mammal cloning (see below), humans are not excluded from the language of the patent, which leaves the patent open to human as well as other types of mammal cloning. Therefore, the Patent office is sending mixed messages with its granting of patents, and it could be conceivable that the office would support a patent for human beings in the future. This is a frightening thought for many people who do not support the idea of cloning humans on both religious and moral grounds, and it will certainly lead to a public outcry if it occurs.

Obviously, the patenting of living things holds implications for human cloning, which is one of the moral and ethical dilemmas surrounding this practice. In fact, patents for human cloning have been approved in the 21st century, which many people feel can make humans a commodity in the future. A "New York Times" reporter notes, "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" (Pollack). Another writer notes that there are virtually no limits on what a patent can be issued for, and so, the patent office can potentially issue patents on any number of controversial or ethical procedures and creations. He writes, "Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on 'anything under the sun made by man'" (Bagley). Clearly, this policy can lead to muddy waters and questions of morality in the future. Most people agree that human cloning should not occur for any number of reasons, including the ability to create humans and even "perfect" humans to serve as workers or in effect "slaves." This is a moral and ethical question that should not be decided by the patent office, but by lawmakers in the United States. There has been much debate in Congress over human cloning, and the accepted practice is that it should not occur. However, the Patent office is leaving enough doors open that it could occur in the future, under auspices of the U.S. Patent Office, which has approved at least one patent that could ultimately lead to human cloning.