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Patents Science

U.S. Denies Patent on Part-Human Hybrid 402

Posted by Zonk from the teenage-mutant-ninja-turtles-and-other-strangeness dept.
jimkski wrote to mention a Boston Globe story involving the refusal of a patent claim on a genetically engineered creature. From the article: "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 U.S. intellectual property law."
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U.S. Denies Patent on Part-Human Hybrid More

U.S. Denies Patent on Part-Human Hybrid

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  • Wow - you had me at "US denies patent". (Score:5, Interesting)

    by MrRTFM ( 740877 ) * on Sunday February 13, 2005 @09:32PM (#11663845) Journal
    Even better, he bascially applied for it, hoping to set a precendent to stop others patenting living creatures.

    Nice to see - my faith in the Patent system has raised slightly from 'completely hopeless' to 'mostly hopeless'

    • Re:Wow - you had me at "US denies patent". (Score:5, Insightful)

      by LucidBeast ( 601749 ) on Sunday February 13, 2005 @09:46PM (#11663948)
      The article rises an interesting question though. When do we cross over to the unpatentable? If we keep adding human genes to a mouse for what ever purpose, does the mouse eventually cross that line? I'm pretty sure that there are a lot of patented [medarex.com] animals that contain human genes. I don't know if there are any that contain many human genes, but I would imagine that for some purposes that would be desirable. Of course there are about 40k genes in humans (last count I remember) so getting to a significant percentage is a long shot.

      • Re:Wow - you had me at "US denies patent". (Score:4, Informative)

        by budgenator ( 254554 ) on Sunday February 13, 2005 @10:35PM (#11664242) Journal
        there are about 40k genes in humans
        I'm not sure that anyone really has any idea how many are truely human genes, how many are advanced primate genes, how many are shared by primates in general. I once remember a study that suggested that humans and gorillas were 98% the same geneticaly. That was before genomics, I still assume we'd find the results of a modern genomic comparisson embarrassing to our human ego's.
    • Go figure that the first truely patentable concept to come up, in the news, in a long time has been deined by the US patent office. Mind you a general patent on the idea of creating geneticaly cross breed creatures may be a bit broad for a patent, but hopefully this does not stop specific creations from being pantented.

      Patents should be about things that can actually be done at the time they are patented. So the first person who creates Dog-Man should be able to patent Dog-Man.

      On the other hand, if th
      • So what happens if the dog-man is sentient, and wants to go on the talk show circuit and publish his life story?

        Does dog-man get royalties, or does the guy who patented dog-man?

        And if they make a dog-man and a dog-woman, could the patent owner sue if they breed?

    • Re:Wow - you had me at "US denies patent". (Score:5, Funny)

      by Anonymous Coward on Sunday February 13, 2005 @10:07PM (#11664077)
      "Nice to see - my faith in the Patent system has raised slightly from 'completely hopeless' to 'mostly hopeless'"

      Funny, my opinion went from 'harmless' tp 'mostly harmless'.

    • Re:Wow - you had me at "US denies patent". (Score:4, Insightful)

      by Nefarious Wheel ( 628136 ) on Sunday February 13, 2005 @10:31PM (#11664215) Journal
      (slightly off-topic, apologies) I read a short SF story a long time ago about people who had genetically re-engineered pigs so they didn't have a cloven hoof. IIRC The plot revolved around whether the resulting bacon was kosher or not, and whether or not it could be patented, and whether or not a commercial entity could own the only source of a population segment's (newly) preferred food.

      If you think about it, this would be an extraordinarily contentious issue for a major segment of the population.

      This made me wonder -- how much of the controversy about GE foods is based in science, and how much based in culture?

      • I believe that's one of Harry Turtledove's short stories. However, it dealt with changing pigs' digestion; their hooves are fine.

        And the LORD spake unto Moses and to Aaron, saying unto them,

        Speak unto the children of Israel, saying, These are the beasts which ye shall eat among all the beasts that are on the earth.

        Whatsoever parteth the hoof, and is clovenfooted, and cheweth the cud, among the beasts, that shall ye eat.

        Nevertheless these shall ye not eat of them that chew the cud, or of them that divid

      • Kosher pork (Score:5, Interesting)

        by Kafir ( 215091 ) <qaffir@hotmail.com> on Monday February 14, 2005 @01:23AM (#11665157)
        I asked a rabbi about that once. I was working for a catering company in Cleveland that does a lot of Jewish events (weddings, bar mitzvahs, and so on), and the catering company worked with a rabbi who oversaw things to make sure we followed the food laws. So I thought he'd be well qualified to tell me whether a pig-based animal, genetically modified to comply with the Levitical food laws, could be kosher.

        I didn't get an answer, though. I couldn't get him to take the question seriously - he seemed to think that no one would go to the trouble of genetically engineering pigs, just to let Jews eat real bacon - which seems oddly naive, given the lengths [wired.com] people have gone to to get around the commandment against working on the Sabbath.

        There are lots of questions like this, where advances in science have possibilities that aren't clearly covered under millenia-old religious laws - like how a Muslim on the moon (or worse, a rotating space station) would figure out which way to face to pray.
        • I have no issues with religious sects eating what they want (or not as the case may be). However, just to be perverse (and to cover both sides of the argument if you will), I do pull out the following Old Testament passage (stolen from an idea by Diane Duane) once in a while then note the reaction.

          Deuteronomy 23:13 And thou shalt have a paddle upon thy weapon; and it shall be, when thou wilt ease thyself abroad, thou shalt dig therewith, and shalt turn back and cover that which cometh from thee ...

          I'v

          • Re:Kosher pork (Score:3, Informative)

            by mattdm ( 1931 )
            Deuteronomy 23:13 And thou shalt have a paddle upon thy weapon; and it shall be, when thou wilt ease thyself abroad, thou shalt dig therewith, and shalt turn back and cover that which cometh from thee ...

            I've been in a lot of churches of all faiths, but have never seen one yet without an indoor privy.

            Cute, but it only applies to church camps -- look at verse 23:9, which leads into that passage. (Note yours begins with "and".)

            (Not that there aren't plenty of wacky commandments in there.)

            • Re:Kosher pork (Score:4, Insightful)

              by mattdm ( 1931 ) on Monday February 14, 2005 @03:54AM (#11665681) Homepage
              Ooh, there's some really good property law bits in the next part:

              Deuteronomy 23:24: If you enter your neighbor's vineyard, you may eat all the grapes you want, but do not put any in your basket. 25. If you enter your neighbor's grainfield, you may pick kernels with your hands, but you must not put a sickle to his standing grain.

              It's biblical fair use!

  • so you can genetically engineer corn, and pigs (Score:5, Insightful)

    by Rooked_One ( 591287 ) on Sunday February 13, 2005 @09:32PM (#11663847) Journal
    and just about anything else thats alive, but not people?

    I'm not looking for a troll here, i'm just smoking some genetically engineered marijuana and it seems like an odd thought.

    • That's not true. You can genetically engineer all the people you like, you just can't hold US patents on any of them.

    • Re:so you can genetically engineer corn, and pigs (Score:5, Interesting)

      by GoofyBoy ( 44399 ) on Sunday February 13, 2005 @09:50PM (#11663975) Journal
      From the article they had their reasons, purely legal and not personal/ethical,

      From the article;
      One rationale in the documents sent to Newman is that such a patent would be "inconsistent with the constitutional 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 core privacy rights in the Constitution-- a person's right to decide whether and when to procreate.

      Patents on humans also could conflict with the 13th Amendment's prohibition against slavery. That is because a patent permits the owner to exclude others from "using" the invention. Because "use" can mean "employ," officials wrote, a patent holder could prevent a person from being employed by any other -- which "would be tantamount to involuntary servitude."

      Finally, the office noted it is illegal to import products that are made abroad using processes patented in the United States. To show how that could cause a problem in a world in which people are patentable, it gave an example in which a man goes overseas and undergoes one of the many surgical procedures patented by US doctors. Simply by returning to America, the office said, that "surgically altered human" could be guilty of patent infringement for illegally importing himself.

  • He would have won.. (Score:5, Funny)

    by EvilCabbage ( 589836 ) on Sunday February 13, 2005 @09:32PM (#11663853) Homepage
    .. if he'd hired Disneys lawyers.

  • And its name would be (Score:3, Funny)

    by BoomerSooner ( 308737 ) on Sunday February 13, 2005 @09:32PM (#11663857) Homepage Journal
    You guessed it, Rush Limbaugh [rushlimbaugh.com]

    • Re:And its name would be (Score:2, Funny)

      by Anonymous Coward
      That's so obvious, it's no longer funny... like saying that it was G. W. Bush (Half-monkey)...

      For humor, you need to say it's somebody who isn't lambasted daily...

      "It's John Kerry (Half rock, half man!)"
      "It's Ahhhnold (Half grope, hald man!)"
      "It's Newt Gingrich (Now you know how he got his name!)"
      "It's Bill Clinton (The walrus genes predispose him to preferring the... husky ladies.)"
      "It's Michael Jackson (He's chamelion, that's why he's changed colors!)"

      Et cetera... see?!?

  • How about part tree and part plant? (Score:5, Insightful)

    by Eunuch ( 844280 ) * on Sunday February 13, 2005 @09:33PM (#11663858)
    Humans are a subset of animals. Get it? It looks the article actually recognizes this, which is refreshing but rare. It's hard to even have a talk about important issues such as consciousness and genetics when we can't get even get passed a basic fact.

  • I'd be happy about this (Score:5, Insightful)

    by Anonymous Coward on Sunday February 13, 2005 @09:33PM (#11663860)
    But aren't a huge number of the alleles in the human genome patented already? It seems like this was done not because of a reasonable understanding on the part of the patent office that living creatures shouldn't be patentable, but purely because of the grossout factor. That's not a step forward.

    • Re:I'd be happy about this (Score:2, Informative)

      by Anonymous Coward
      But aren't a huge number of the alleles in the human genome patented already? It seems like this was done not because of a reasonable understanding on the part of the patent office that living creatures shouldn't be patentable, but purely because of the grossout factor. That's not a step forward.

      Alleles are not living entitites - they are different versions of a gene.

      As to your second point, the USPTO did oppose the patenting of life forms (of any type). That is why the Chakrabarty case (mentioned in TFA)

  • dare I say it? (Score:3, Insightful)

    by ErichTheWebGuy ( 745925 ) on Sunday February 13, 2005 @09:33PM (#11663864) Homepage
    Could the USPTO finally be gaining a bit of common sense? Nah, this is more likely because of the republican administration and the likely implication of granting this patent.

    • Re:dare I say it? (Score:5, Funny)

      by ConceptJunkie ( 24823 ) on Sunday February 13, 2005 @09:37PM (#11663880) Homepage Journal
      Nah, this is more likely because of the republican administration and the likely implication of granting this patent.

      What? A bunch of human-monkey hybrids that will certainly vote Democrat?!

      • Re:dare I say it? (Score:5, Insightful)

        by budgenator ( 254554 ) on Sunday February 13, 2005 @10:52PM (#11664337) Journal
        no I think the implication is that the pressure from the whacko-religious near-terrorist christian extremists would become to much to bear if the governament started patenting human-animal chimeras. It would errode the sacredicity of humanity by forcing them to move from their present all-or-nothing view humans, i.e. that thing god created first to an actual definition that would stand muster in a secular legal scope.
        • I hate it when the view humans violate the sacredicity of the governament! At least some of the whackos can spell. P.S. According to creationism God created light first; I'm not sure how that stands up in a secular court though. Allegedly He created humans a few days later because He was bored.
      • What? A bunch of human-monkey hybrids that will certainly vote Democrat?!

        Nah, the monkey's vote Republican :)
  • Namely, a potential revival of Manimal [epguides.com].

  • Inadequate buyoffs (Score:5, Insightful)

    by Anonymous Coward on Sunday February 13, 2005 @09:37PM (#11663884)
    In other words, he didn't own a multi-billion dollar corporation that could pay off the right people.

  • Hopefully this will be a tipping point (Score:5, Insightful)

    by Anonymous Coward on Sunday February 13, 2005 @09:38PM (#11663896)
    A patent application was denied! Wow! That is news!

    • Re:Hopefully this will be a tipping point (Score:4, Interesting)

      by Jeff DeMaagd ( 2015 ) on Monday February 14, 2005 @01:31AM (#11665197) Homepage Journal
      Patents are denied all the time. What often happens is that the applicants re-apply several times. Part of it is that there was a Congressionally mandated review time (I think three or six months from application) where it must be accepted or denied before the deadline. When the backlog gets to be too much, they just deny a bunch of them. Then those denied re-apply. I think the USPTO gets a part of the application fees too, so more money for them for each re-application.

      This is from a former prof of mine that holds a few patents.

  • One click buying... (Score:3, Insightful)

    by Cycline3 ( 678496 ) on Sunday February 13, 2005 @09:39PM (#11663898) Homepage
    If they let Amazon patent one click buying, why not let someone patent this? It's in so many ways more deserving... I mean... patent one click? Who is going to patent double click and triple clicks?

  • Does precedence matter to the USPTO? (Score:4, Insightful)

    by PornMaster ( 749461 ) on Sunday February 13, 2005 @09:39PM (#11663904) Homepage
    While there may be issues of precedence in the US legal system, does precedence hold importance in the USPTO, particularly with regard to an "inaction" of not granting a patent?

  • DAMN! (Score:5, Funny)

    by Sophrosyne ( 630428 ) on Sunday February 13, 2005 @09:41PM (#11663912) Homepage
    There goes my retirement plan!!
    I was going to have some kids, patent them... then collect royalties off them when they have kids...
    That way I could retire with relative ease.

  • This is great news (Score:5, Funny)

    by weave ( 48069 ) * on Sunday February 13, 2005 @09:44PM (#11663934) Journal
    Now that they didn't get a patent for their creature, it means other people can run out and build their own without having to worry about getting sued. Open source creatures are safe!

    Can't wait to get started on my perfect pet!

  • the probability of virus/pathogen crossing the species barrier is increased enormously by makeing these things. It is madness and should be internationally outlawed.
  • I'm not sure I can give the patent office any props, they have sunk so far in public opinion that any good press for them is a drop in the bucket of bad press.

    This cannot be lauded as a 'step in the right direction' for the USPO, as that big bohemeth has been going down the wrong road for far too long.

    • Re:Slightly raised = (-)+1 (Score:4, Interesting)

      by back_pages ( 600753 ) <<back_pages> <at> <cox.net>> on Sunday February 13, 2005 @11:42PM (#11664622) Journal
      I'm not sure I can give the patent office any props, they have sunk so far in public opinion that any good press for them is a drop in the bucket of bad press.

      I don't know how to ask this without sounding condescending, so here goes without any tact:

      From the article: In 1987, the patent office announced it would draw the line at humans, but it offered no legal rationale or statutory backing.

      So you see, this position is 18 years old. Also, it is basic knowledge of the patent system (but also implied by the article) that the USPTO doesn't possess ultimate authority to interpret law - that is the role of the judicial system.

      Alternatively, this "activist" didn't even bother to pursue the appeal process, thereby keeping his application OUT of the court system, thereby preventing his "activism" from generating new case law, thereby stopping his heroism short of actually achieving anything but publicity. The USPTO rejected his application based on a stance it took in 1987 - there was no legal basis for the USPTO's stance in 1987 and because this "activist" failed to appeal, there is STILL no legal basis for the USPTO's stance. There is -literally- nothing new in this story. Well, nothing newer than 18 years ago.

      So, I don't want to sound condescending, but there it is. You say, "This cannot be lauded as a 'step in the right direction' for the USPO" [sic], but I can't see how this story has anything newsworthy in it at all. If anything, this is a 'step in the right direction' for the public, for they might become slightly more aware how the Courts are actually in charge of what is or is not patentable, not the USPTO.

      Here's to hoping. Keyword from the article: Chakrabarty.

  • How come this sounds like... (Score:3, Funny)

    by JoeCommodore ( 567479 ) <larry@portcommodore.com> on Sunday February 13, 2005 @09:48PM (#11663961) Homepage
    the lead in to one of those B-lot horror flicks:

    "...Now that he has been rebuffed by his community the scientist will turn his discovery towards evil - and unleash his unholy creation on the public to seek revenge!..."

    I can see the SciFi channel picking up the phone to get the rights right now.

  • Well there go my dreams of financial independence. (Score:4, Funny)

    by BeerSlurpy ( 185482 ) on Sunday February 13, 2005 @09:50PM (#11663977)
    I was planning on creating an army of giant half human, half goat warriors that would obey my every command. I would use them in an elaborate plot to rob a bank and hold the UN hostage. Then again, maybe the plan is worth going ahead with even if I cant patent it.

    Still, as long as it isnt part human, your chances of prevailing in the patent office seem pretty good. Which means the giant radioactive bees are definitely good to go.

  • A victory and a loss for the filer (Score:5, Interesting)

    by TimmyDee ( 713324 ) on Sunday February 13, 2005 @09:51PM (#11663979) Homepage Journal
    Aside from the fact that this would-be patent dealt with chimeric technologies, this case was a particularly interesting one because the filer, Stuart Newman, sought the patent to block others from creating the technology. By denying him the patent on said terms (that it is too close to a human), he won -- sort of. This means that other companies cannot patent such processes if they "discover" them, but at the same time he cannot block the creation of "chimaera", which was his original purpose.

    At the time he filed the patent, the head of the USPTO held a press conference and stated that he would be denying the patent on ethical terms, ground on which the USPTO is not supposed to tread. In actuality, I've heard that he was under pressure from industry, specifically two companies in the business of chimeric technologies (I can't remember their names, but one is located in MA, I believe). In any case, the fact that he was denied a patent is good -- other people/companies cannot patent similar creations. On the other hand, his loss is bad -- other people/companies can feel free to create chimaeras.
    • At the time he filed the patent, the head of the USPTO held a press conference and stated that he would be denying the patent on ethical terms, ground on which the USPTO is not supposed to tread.

      Interestingly, in my country, the list of inventions that may be excluded at will from patent protection include those which would interfere with the public order or morality ( AusFTA 17.9 [dfat.gov.au] clause 2A ). As this clause applies to both parties in the agreement, it would seem the USPTO now has this freedom as well.

      R

      • No, the US used to have a policy of denying immoral inventions patents, but this has ultimately been seen as being a bad idea. IIRC, the current statute requires patents to be issued except where a few narrow conditions crop up, and morality isn't one of them.

  • what...?? (Score:5, Funny)

    by to_kallon ( 778547 ) on Sunday February 13, 2005 @09:51PM (#11663981)
    creature that is part human and part animal
    wow, talk about prior art [ntk.net].....

  • Not the end of the story (Score:5, Informative)

    by Raul654 ( 453029 ) on Sunday February 13, 2005 @09:54PM (#11663994) Homepage
    The exact same thing happened in 1980 when someone tried to patent an artificial bacteria. The USPTO rejected the claim, and it went all the way to the Supreme Court in Diamond v. Chakrabarty [oyez.org], where In a 5-to-4 decision, the Court explained that while natural laws, physical phenomena, abstract ideas, or newly discovered minerals are not patentable, a live artificially-engineered microorganism is. So I suspect this is nowhere near over. As a matter of fact, (IANAL), I think the ideas set forth in that case would seem to be on Mr. Newman's side. If the court rules against him, they're going to have to come up with some kind of legal dividing line to explain why artificial bacteria are patentable but artificial humans/humanoids aren't.

  • This won't affect other stupid patents. (Score:2, Informative)

    by Anonymous Coward
    From TFA (emphasis added):

    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. Rifkin had filed the main amicus brief supporting the patent office.

    They lost. In a 5-to-4 decision, the court declared that patents could be issued on "anything under the sun that is made by man."

    The office has obliged, issuing pat

    • genetically engineered bacterium

      Actually the Chakrabarty organism was not genetically engineered. It was the result of accelerating the process of natural selection by exposing naturally occuring organisms to supbrates containing PCBs until one was found that could live on PCBs as it's sole food source.

  • Prediction (Score:4, Insightful)

    by LaCosaNostradamus ( 630659 ) <`moc.liam' `ta' `sumadartsoNasoCaL'> on Sunday February 13, 2005 @10:01PM (#11664032) Journal
    If a corporation attempts to patent much the same thing, it will be granted.

  • Damn! (Score:2, Funny)

    by Anonymous Coward
    Now I can't sue Bill Gates for violating that patent by living.
  • The scientist should now go Patent the Idea of having something not patented.
  • ...top-secret US Government agencies had prior art.

  • Manimal? (Score:3, Funny)

    by Easy2RememberNick ( 179395 ) on Sunday February 13, 2005 @10:13PM (#11664111)
    Hey! Was it a Manimal? [imdb.com]

  • Wow (Score:2, Funny)

    by Unfocused ( 723787 )
    And here I was thinking patents couldn't be denied. Wonder how long until they try this "deny" thing with the software patents...

  • Encoding oddity (Score:2, Informative)

    by Jay Carlson ( 28733 )
    Oh, I love it when big web sites screw up their characters trying to be clever.

    In the second page we see the "word":

    déjÃ

    Off to view source. It shows:

    For Rifkin, the case was d&#xC3;&#xA9;j&#xC3;&#xA0; vu

    Oops. They meant déjà, and just had to get the snotty accents right. Unfortunately, they fed their UTF-8 text into a web publishing tool that assumed it was ISO Latin 1 or no doubt Win1252. Oops.

    The sequence "0xC3 0xA9" is "é" when interpreted as
  • God shmod, I want my monkeyman.

    --Bart Simpson
  • Cat-girls without patent lawsuits! Though it would be kind of fun to try finding the patent number stamp.

  • A photograph of the actual hyrbrid (Score:3, Funny)

    by Anonymous Coward on Sunday February 13, 2005 @10:51PM (#11664334)
    ....can be seen here:

    http://www.histar.com/mornings/starchive/2002/11 /i mages/michael_jackson.jpg

  • Beware, people! You know how all those horror movies go. Just when you think the hybrid human is dead he comes back to life and terrorizes you!
  • this also means the world will have to go on without the next patent in this series, the four-assed monkey...
  • Humans are animals, so what is a "part human part animal"?
  • Remember kids, the U.S. will never reject a patent, but the U..S will.

  • Porn Industry (Score:4, Interesting)

    by the eric conspiracy ( 20178 ) on Sunday February 13, 2005 @11:23PM (#11664502)
    According to well established history, the first application of this will be the porn industry. So it seems to me that the line between human-human sex and human-animal sex is likely to become quite blurred very soon.

  • The ad that was served with the article was "That's what I call an everything Bagel" from McDonalds.

    McDonalds. Now with 50% more cannibalism.

  • Prior art. (Score:3, Funny)

    by AJWM ( 19027 ) on Monday February 14, 2005 @12:38AM (#11664928) Homepage
    It seems that one Dr. Moreau [gutenberg.org] had prior art. Maybe that's why USPTO refused it.

  • Planet of the Apes? (Score:3, Insightful)

    by Orion Blastar ( 457579 ) <orionblastar AT gmail DOT com> on Monday February 14, 2005 @01:08AM (#11665092) Homepage Journal
    Anyone remember that movie? They tried to give Apes human-like abilities by introducing human DNA into them. The Apes, therefore, were ape-human hybirds.

    Now that the patent is denied, nobody will have any reason to make an Ape-Human hybrid that will ultimately take over planets and such in the future.

  • At what point.... (?) (Score:3, Insightful)

    by Wiseazz ( 267052 ) on Monday February 14, 2005 @09:36AM (#11666694)

    From the article: "At what point is something too human to patent?"

    Interesting question, but not easy to answer. A related question would be: at what point does a collection of cells become a human being and legal citizen with rights, etc. I think if we could answer that to everyone's satisfaction (or most everyone), then the author's question would also be satisfied. What does it mean to be human, and how closely do we guard nature's original design against scientific advances, personal liberties (abortion, made-to-order children...), etc.? Just questions to answer questions, I know... someone smarter than me can figure it out.

    And by introducing abortion-related musings into the conversation, please allow me to apologize for bringing us that much closer to invoking Godwin (as abortion discussions almost always spiral downwards) In my defense, the issue *does* raise similiar concerns/issues/questions.

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