New and...improved?

February 13, 2005 7:44 AM

U.S. Denies Patent for a Too-Human Hybrid - what happens when your DNA violates a patent? Not sure where to begin on this one.
posted by FormlessOne (12 comments total)

Oh boy, not sure where to begin on this one, you're right about that.

The U.S. 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

I'm not aware of any rule stating that human DNA is not patentable, so it is not entirely clear to me what the formal grounds for denying this one is, although I think I see where they are coming from.

First of all, let's clear up the perhaps biggest misunderstanding about patents: HAVING A PATENT DOESN'T MEAN YOU CAN ALWAYS WORK YOUR INVENTION. Sorry for shouting, but so few people seem to get this one. The patent law's primary objective is not to be concerned with questions of ethics. As a simple example, consider a potentially dangerous drug. You can get a patent on that, but that still doesn't mean that you're allowed to manufacture and sell the drug. For that you still have to go through the entire FDA process.

Same thing with a patent on a chimera (hybrid animal-human). It may be disgusting to many people, but it simply isn't the patent system's job to make sure that people don't actually put disgusting ideas like that to practice. For that you need other laws and mechanisms dealing with the ethical side of it all. And frankly, I wouldn't trust some USPTO bureaucrat to make the right decision on ethical questions like that.

Paradoxically, the rejection was a victory of sorts for the inventor, Stuart Newman of New York Medical College in Valhalla, N.Y. 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."

Oh, yeah? Well, does the patentability of this affect whether other people do or do not profit from your invention? The fact that it's not patentable only means that now, everybody can practice the invention without having to check in with Stuart Newman first.

Again, the patent system simply isn't the right place to fight out these ethical questions.

he challenged the patent office: Issue the patent, which would keep others from pursuing such work for 20 years...

Not so. If there's money to be made, then his patent would only encourage others to find a way around it, i.e. to come up with more ways to accomplish the same thing.
posted by sour cream at 8:16 AM on February 13, 2005

Here's my proposition. Rather than allowing a global patent on lifeforms / DNA, what if we could ONLY patent the *specific* uses of those creatures?

So, let's say, someone perfects the pigs with human blood. They patent the pig, but the patent is ONLY for the use of their blood as a human blood substitute. It would be legal, if you managed to obtain one, for an unauthorized person to own the pig, even breed the pig - make it a pet, roast it, whatever, just don't sell its blood.

And, as a corrollary, crossbreeds from these creatures used for a DIFFERENT purpose are also permitted. So if you cross-bred your human-blood pig with, let's say, a pig with a hyperadvanced liver, and managed to create an entirely new sweetmeats delicacy from the resulting spawn, that too would be legal. (but to attempt to use the crossbreed's blood in humans would be a patent violation)

I think that would satisfy just about everyone, except the fanatics.
posted by InnocentBystander at 8:54 AM on February 13, 2005

Living things / DNA sequences shouldn't be able to be patented. Period.
posted by bshort at 9:10 AM on February 13, 2005

The current regimen of being able to patent existing DNA is complete crap. Patents cover inventions, but the DNA was already there. You didn't invent it, you just discovered it.

However, a wholly-created lifeform should, in my opinion, be patentable. If you designed and built it from scratch, it's an invention, whether or not it's squishy and self-replicating.
posted by Malor at 9:30 AM on February 13, 2005

So a quagmire should be patentable?
posted by weapons-grade pandemonium at 10:55 AM on February 13, 2005

Nope, not quagmires.... way too much prior art. :-)
posted by Malor at 12:47 PM on February 13, 2005

InnocentBystander proposes yet another white meat: "So, let's say, someone perfects the pigs with human blood. They patent the pig, but the patent is ONLY for the use of their blood as a human blood substitute. It would be legal, if you managed to obtain one, for an unauthorized person to own the pig, even breed the pig - make it a pet, roast it, whatever, just don't sell its blood."

Mmmm, gravy.
posted by orthogonality at 2:21 PM on February 13, 2005

bshort:

so what if you design a new gene from scratch, and it codes for a protein that will turn water to wine? and then you put that gene in a bacterium, and you've got yourself a portable water-to-wine machine? it's alive, but should it still be unpatentable?
posted by rxrfrx at 5:04 PM on February 13, 2005

Someone already holds the patent on that one, buddy.

Jesus.

Jesus Christ.

Ya know? The SON of GOD. scoff.

Pass the human-blood-pork, please.
posted by Baby_Balrog at 5:38 PM on February 13, 2005

The current regimen of being able to patent existing DNA is complete crap. Patents cover inventions, but the DNA was already there. You didn't invent it, you just discovered it.

Uh, actually I think that is not quite true.

First of all, this guy didn't try to patent existing DNA, but DNA that was a hybrid of human and animal DNA. That DNA is *not* already there; he didn't discover it, but fabricated it himself. But that isn't really the issue discussed in the article.

Secondly, I don't think that there is a "current regimen of being able to patent existing DNA." Where did you get that idea? If it's not new, then you won't get a patent on it. But actually, I think that there are only few, if any, patents that really patent the DNA itself. If you look closely at those so-called DNA patents, you will find that what is really patented is usually something like "a medicine including an enzyme made using the DNA" or something like that. So it's not the DNA itself that's patented, but it's use in a drug (or enzyme or animal). Saying that this is not an invention because the DNA was there already is a bit like saying you can't get a patent on a CD player because the metal and the plastic were there already and all the inventor did was come up with a new arrangement of those materials.
posted by sour cream at 6:29 PM on February 13, 2005

Give me a "sense of the meeting" here: which is worse/yuckier, a chimp with a human brain or a human with a chimp brain?
posted by davy at 10:54 PM on February 13, 2005

so what if you design a new gene from scratch, and it codes for a protein that will turn water to wine? and then you put that gene in a bacterium, and you've got yourself a portable water-to-wine machine? it's alive, but should it still be unpatentable?

There's no difference between a recipe for muffins and a recipe for a mouse. One just happens to use fewer types of ingredients.
posted by bshort at 8:19 AM on February 14, 2005