Copyright © Françoise Herrmann
Reader beware! The following post concerning patented animals is hardly for the faint of heart.
In 1980, in the case pitting Diamond vs. Chakrabarty, the US Supreme Court ruled, in a landmark decision, that man-made micro-organisms were patentable. By creating a distinction between what is manufactured in the laboratory - "the product of man", and what nature creates - which is not patentable pursuant to US patent law (Title 35 of the Federal Code), this decision in fact paved the way for patenting of genetically modified animals.
Although the 1980 Supreme Court decision referred to micro-organisms called Pseudomonas which had been genetically engineered with segments of bacterial DNA to “degrade crude oil so as to provide bio-remediation of oil spills”, the highly controversial psuedo-distinction between “man-made” and “nature-made” created precedence to justify patentability. Indeed, together with the discovery of DNA in 1953, and subsequent mapping of the human genome, this Supreme Court decision opened the flood gates for patenting “anything under the sun that is made by man” according to Thickstun (2007), and in particular the patenting of mammals in the laboratory, such as mice, cows, sheep, fish and many others.
As Vandana Shiva has written in her vibrant critique and in-depth analysis of this controversial decision and its consequences:
“Currently, well over 190 genetically engineered animals, including fish, cows, mice and pigs are figuratively speaking standing in line to be patented by a variety of researchers and corporations” (Shiva, 1997, p. 20)
Patented animals? You are probably worried… or dismissing all of this as scifi. Well, the truth of the matter is that this is far from fiction. So hang in there…
The first animal patent, US4736866, was granted to Harvard University researchers as early as 1988, for “Transgenic non-human mice”, trademarked as the Oncomouse™, which is summarized as:
“A transgenic non-human eukaryotic animal whose germ cells and somatic cells contain an activated oncogene sequence introduced into the animal, or an ancestor of the animal, at an embryonic stage.” [Abstract US4736866]
With oncogenes inserted into its genome, the Oncomouse™ will now develop cancer, so that the effects of anti-cancer drugs may be tested. In an effort to field some of the more proximate and salient bioethical issues, the researchers do specify that this is a non-human genetically modified animal. And the EPO will also grant the Oncomouse™ patent, 16 years later, on the grounds that the Oncomouse™ is a species that does not exist in nature, and is therefore not subject to the provisions of Article 53(a & b) of the European Patent Convention which (a) excludes patents for inventions “the publication or exploitation of which would be contrary to ordre public or morality” and (b) excludes patents on “animal varieties or essentially biological processes for the production of… animals.” (Wipo Magazine, June 3/2006)
Apparently slightly distal to the presumably, non-patentable, genetically-modified human, there are issues of furry animal rights, and the suffering caused to these genetically modified creatures and their offspring. But evidently, none critical enough to jar US and European institutions against granting this patent.
If you are still here reading this post, then take a peek at the copyrighted picture of an Oncomouse™ from Harvard Medical School. And, hang in there again… as there is much more that is genetically modified and patented…
Siva, V. (1997) Biopiracy: The plunder of nature and knowledge. Boston, MA: South End Press.
Thickstun, P. (2007) Intellectual Property and Biotechnology Patents. In the ATA Patent Translators Handbook, pp. 85-96. Alexandria, VA: American Translators Association
Wipo Magazine (March, 2006) Bioethics and Patent Law: the case of the oncomouse. .http://www.wipo.int/wipo_magazine/en/2006/03/