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 US 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, NY. 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 US 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.
The Newman case reveals how far intellectual-property law has lagged behind the art and science of biotechnology. It also raises profound questions about the differences —— and similarities —— between humans and other animals, and the limits of treating animals as property.
‘‘The whole privatization of the biological world has to be looked at,’’ Newman said, ‘‘so we don’t suddenly all find ourselves in the position of saying, ‘How did we get here? Everything is owned.’’’
Newman’s application, filed in collaboration with Washington biotech activist Jeremy Rifkin, 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 —— a “chimera”.
When US 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. The court declared patents could be issued on ‘‘anything under the sun that is made by man.’’ In 1987, the patent office announced it would draw the line with humans, but it offered no legal rationale or statutory backing. The paper trail created by the Newman claim offers perhaps the best explication yet for that ban.
One rationale cited to Newman is that such a patent would be ‘‘inconsistent with the right to privacy.’’ After all, the office wrote, a patent allows the owner to exclude others from making the claimed invention. If a patent were to be issued on a human, it would conflict with one of the Constitution’s core privacy rights —— a person’s right to decide whether and when to procreate.
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