Animal Patents: Where do we draw the line?

According to the United States Patent and Trademark Office (USPTO), a patent is defined as a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.  In order for a patent to be granted, two criteria must be met: the invention must consist of patentable subject matter (which is undefined by the USPTO), and the invention must be non-obvious to  individuals with expertise in the relevant field.  Most people tend to think that only inanimate objects can be patented with the government, however this is not the case.

In 1987, the USPTO announced that it “now considers non-naturally occurring, nonhuman, multi-cellular living organisms, including animals, to be patentable subject matter.”  The USPTO issued the first patent for an animal to Harvard University in 1988 for the “Oncomouse,” a mouse genetically modified to develop cancers to mirror human diseases.  The United States became the first country in the world to issue a patent for an animal.

The public scrutinized this decision by the USPTO.  In 1987, Congress took a deeper look at this issue and considered a moratorium on animal patents, but concluded that the patenting of non-human subject matter would continue.  In addition, many animal protection organizations tried to challenge the patenting of animals, yet were unsuccessful.

The American Anti-Vivisection Society (AAVS) believes that it is an unethical and inappropriate use of the patent system to issue patents for sentient beings.  In 2008, the U.S. Patent and Trademark Office agreed with AAVS’s request to rescind a patent that had been granted for rabbits whose eyes were intentionally damaged to serve as a model for “dry eye” conditions in humans  In addition, the government has rejected some controversial proposed patents, such as the “humanzee,” a half man and half chimp. The USPTO denied the patent application in 2005 because it was too human.

In 1999, U.S. patent law changed so that challenges to any new patent could be submitted by any person or organization.  If a challenger is dissatisfied with the decision of the USPTO, an appeal can be made to the Federal Circuit Court and even the Supreme Court. This has allowed activist groups, like the AAVS, to challenge some of the animal patents that have been issued, including the rabbit patent and the beagle patent, in an attempt to rescind said patents.  Many of these patents have been rescinded, including the beagle patent which was repealed in 2004 by filing a request for reexamination.

Since 1987 when the USPTO announced that animals are “patentable subject matter,” over 660 patents have been granted on animals. Some examples include:

-genetically manipulated mice and frogs for use in testing nerve gas, derived through research funded by the U.S. Army;

-horses and mice who have been implanted with thymus and liver organs from a human fetus of approximately 24 gestational weeks; and

-rats whose brains were injected with aluminum salts to induce Alzheimer’s disease, a uniquely human malady.

In this day and age where science has expanded into such a realm of infinite possibilities, there does exist other ways to research and test diseases, vaccines, genetics, etc.  The use of cell lines and cell tissues is a substantial alternative to the patenting of animals.  Instead of testing animals, scientists and researchers can use the cells of the animals in a controlled environment and do much of the same type of testing without the harm of animals.  We are no longer in a time period where we need to use or alter the genetic makeup of living animals to perform scientific testing.

In addition, the boundaries of what constitutes intellectual property and what does not becomes a grey line with the introduction of living mammals.  Here is some food for thought:  If the humanzee patent was denied because it is too human what does it say for our outlook on animals?  While humans are the highest entity on the dominance hierarchy, is it still okay in this day in age for us to patent animals and play with genetics?  Is it okay to combine the genetic makeup of animals, but not humans?  How do we know where the boundary is drawn on patents?  Why does the boundary stop at the patenting of humans, yet the USPTO continues to grant animal patents?

Here are some facts about animal patenting in the United States: 

• 122 animal patents have been derived from federally-funded research

• 32 animal patents require human body parts in an animal

• 30% of all animal patents require human genes in an animal

• 18% of patented animals are not genetically engineered, instead they are principally

poisoned, diseased, or surgically altered animals

• Foreign entities own one-third of U.S. animal patents

• 94% of animal patents cover warm-blooded animals

• 12 patents cover dogs

• 54% of animal patents are primarily for ‘disease models;’ 46% are for other purposes, including bioreactors, drug screening, and undifferentiated research