Patents and human chimeras

This article in the Boston Globe (Feb. 13, 2005) summarizes a recent US patent office ruling on whether an application for a human-animal chimera could be approved. The office rejected the claim, holding that the method specified in the application (creation of an embryo consisting of a mixture of human and animal cells) would result in the creation of a living being too close to a human to be patentable.

The story describes that this is a waypoint in a long legal battle over the patenting of life. The applicant in this case,
Stuart Newman of New York Medical College is a collaborator of biotechnology gadfly
Jeremy Rifkin. This patent application was part of an effort to get the patent office to make a precedent for future applications--they reasoned that if the patent were approved they could forestall all such research for the patent term, while if it were rejected it would block future patent applications for human-animal chimeras.

It's not entirely obvious that this will be the effect, since there are many labs currently working at creating mice with various levels of human tissue included. The most famous is perhaps the
mouse strain with a human immune system, but the article mentions the prospect of mice with brains made entirely of human neurons.

There is no definition of human that would determine how much human tissue or human genetic material would be enough to qualify an genetically engineered organism as human. In a legal sense, there is no real protection against the creation of such organisms, beyond the 13th amendment, which bans slavery, and would presumably preclude the extention of property rights over genetically engineered people. But how human does an organism have to be to qualify for this protection? Nobody knows.

Ironically, the patent office appears to be pretty friendly to Rifkin's position. As the article points out, the Supreme Court forced the issue of patenting organisms in the 1980 case of Diamond v. Chakrabarty
(FindLaw), deciding that any artifically created organism (i.e. not naturally occurring) was eligible for patent protection as a genuine human innovation. Since that time, hundreds of patents have been issued for living organisms, and tens of thousands on genes or gene products.

Now that human cloning has been kicked into high gear in Britain, we can expect that there will be an increase in the potential for mixing genetically engineered sequences into humans, including sequences taken from animals or plants. And there will be increasing attempts to make animals with human genes and cells, as experimental models for human drug and treatment testing as well as for other purposes. We're not quite at the island of Dr. Moreau, but we are separated from it by our motives, not our methods.