US Human/Chimpanzee Life Form Patent Challenge by
Jeremy Rifkin & Stuart Newman Will Now Go to the Federal Courts

U.S. Ruling Aids Opponent Of Patents for Life Forms
By Rick Weiss
Washington Post Staff Writer
Thursday, June 17, 1999; Page A2

The U.S. Patent and Trademark Office has turned down a scientist's
controversial request for a patent on creatures that would be part animal and
part human--bizarre life forms that no one has made before, but that might
prove useful in medical experiments.

But unlike most patent office rejectees, the scientist, Stuart Newman, is
celebrating. The New York Medical College biology professor never intended to
make the animal-human hybrids. He applied for the patent to gain the legal
standing to challenge U.S. patent policy, which allows patents on living

The patent office ruled in part that Newman's invention is too human to be
patentable. By doing so, it opened the door to a series of legal challenges
available to all patent applicants--a path that could lead to the Supreme

Newman hopes his appeals will force a judicial and congressional reassessment
of the nation's 19-year-old policy of granting patents on life forms. That
policy, based on a single court decision, has provided the foundation for
today's $13 billion biotechnology industry.

Some patent experts this week criticized Newman for "abusing" the federal
patent review system to bypass the legal avenues by which patent law is
normally made and changed. But even some critics confirmed that the strategy
appeared to be working.

In particular, said John Barton, a patent specialist at the Stanford
University School of Law, the ploy has forced the patent office to
acknowledge the relatively thin legal ice upon which its policies on life
patents rest. The ruling also reveals the agency's apparent uncertainty about
just how human a creature must be before it is no longer patentable, Barton
and others said.

The patent office has argued that to grant patents on people would violate
the 13th Amendment to the Constitution, which abolished slavery. But neither
the patent office nor Congress has ever defined "human."

That question is of more than philosophical import today. Already, several
patents have been allowed on animals containing human genes or organs. And
just this week, scientists in Massachusetts said they were creating live
embryos by combining cow and human cells.

"When we applied for this patent a year and half ago, people reacted to it as
if it was some kind of science fiction scenario," Newman said. "Developments
in the past year have shown that similar things are already on the table and
being considered seriously."

In its rejection letter, the patent office says Newman's invention "embraces"
a human being, but it does not say why other creatures with human components
do not "embrace" a human being, said Washington patent attorney Patrick
Coyne, who filed Newman's application.

"This puts a big question mark on all commercial interests involving human
embryos and embryonic . . . cells," said biotechnology activist Jeremy
Rifkin, a co-applicant on Newman's claim, who has rallied religious leaders
against patents on life forms.

The agency concedes in its letter that in the Supreme Court's single foray
into the topic--a 5 to 4 decision in 1980 allowing a patent on a microbe--the
justices did not include humans on their list of nonpatentable life forms.
But Stephen Kunin, the patent office's deputy assistant commissioner for
patent policy, said the agency "believes" that Congress did not intend to
allow patents on humans or on creatures that are essentially human when it
passed the National Patent Act in 1956. The agency, however, offers no basis
for that belief, Coyne said.

Biotechnology executives have said that without access to patents on
gene-altered animals and other living entities, they would not make the
investments needed to develop new drugs and other products. Yesterday, some
criticized Newman's legal attack.

"The net outcome of this attempt may hurt valuable medical research and
ultimately deny therapies for patients who need them," said Carl Feldbaum,
president of the Biotechnology Industry Organization.

Undaunted, Newman yesterday filed an appeal to the patent office.

"Private ownership of inventions is not the only way progress has been made
in the history of science and the history of medicine," Newman said.

© Copyright 1999 The Washington Post Company