Patenting Living Things: Ethics, Law, and Human Cloning

Introduction: Can Living Things Be Patented?

The question of whether living things can be patented — and what the limitations on that process are — raises numerous ethical issues. The morality of this practice has long come 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.

Historical Background of Patenting Living Organisms

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

The Harvard Mouse and the Ethics of Animal Patents

The Harvard mouse was the first patent ever issued for an animal in Patent Office history. As one 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. As Kevles notes, "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 those scientists.

Patent Law Language and the 1980 Supreme Court Ruling

There is another problem with patent law itself: it is based on archaic language and meaning. Kevles notes, "What is patentable according to statute dates back to the patent law of 1793, which declared, in language [that has persisted], 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). In 1889, however, the Patent Office turned down a patent for a material derived from pine needles, ruling that items found in the natural world could not be patented.

By the mid-1970s, biotechnology firms were beginning to emerge and were applying for patents on some of their technologies. Then, in 1980, the Supreme Court ruled that items created in the laboratory — even living ones — were not "products of nature" and could therefore be patented (Kevles). This decision created the impetus to patent all types of living things, from bacteria to the Harvard mouse, and today patents are routinely granted on living organisms, often with little apparent scrutiny.

The Patent Office does not allow the patenting of a human being; however, in the case of the law on mammal cloning discussed below, humans are not explicitly excluded from the language of the patent. This leaves the patent open to human as well as other types of mammal cloning. The Patent Office is thus sending mixed messages, and it is conceivable that the office could support a patent for human beings in the future — a prospect that many people who oppose human cloning on both religious and moral grounds find deeply alarming.

Conclusion: The Need for Strict Patent Guidelines

Patenting of living things is possible and does occur on a regular basis. Since the Supreme Court's 1980 ruling on the issue, the U.S. Patent Office has not treated the question of whether such patenting is right or wrong as within its purview. Instead, it simply processes patents on procedures and inventions that could someday change the world as we know it. Patenting living things should be subject to strict guidelines, and some patents for living things should not be issued at all. The Patent Office should adopt guidelines that severely restrict the issuance of patents on living things, because living things — especially human beings — should never become a commodity.

References

Bagley, Margo A. "Patent First, Ask Questions Later: Morality and Biotechnology in Patent Law." William and Mary Law Review 45.2 (2003): 469+.

Editors. "Can Living Things be Patented?" Bio.org. 2008. 15 Feb. 2008.

Kevles, Daniel J. "Of Mice & Money: The Story of the World's First Animal Patent." Daedalus 131.2 (2002): 78+.

Pollack, Andrew. "Debate on Human Cloning Turns to Patents." New York Times. 2002. 15 Feb. 2008.