Mar 10
Patenting Animals and Other Living Organisms
Can You Patent Your Cat?
This is undoubtedly one of the questions that frequently arise when intellectual property practitioners discuss their experiences with biotechnology researchers. In general, research suggests that it is impossible to patent a living being. This preconception is most likely founded on more or less rational considerations such as a lack of innovation (how can you patent something that already occurs in nature?) or ethical concerns.
However, plants, animals, genes, and smaller portions of DNA are being patented, resulting in a frightening wave of privatization under the guise of Intellectual Property Rights.
What is a biological Patent?
A biological patent is one that covers a biological invention. Patents were created in the past to ensure that inventors received a financial return and other benefits from the use of their innovations.
Bioprospecting (Biopiracy) is now a big business, and first-world bioprospectors are mining the rich generic resources of the third world for pharmaceutical compounds and other products, often using heritage knowledge as a guide. This is theft of community resources, and it will lead to developing countries accumulating more wealth. As a result, indigenous peoples may have to pay royalties for products made from plants and knowledge that they have used for millennia. Biopiracy is opposed by diverse organisations of farmers, religious leaders, lawmakers, and environmental NGOs all around the world. A declaration signed by 118 indigenous organisations from 27 nations calls for a “halt to the patenting of all life forms,” as well as the rejection of a patent application for human genetic elements.
Can You Patent Your Pet or Any Other Animal?
The answer to the question of whether a living creature can be patented is dependent on two key factors: the sort of living being and the territory in which protection is sought.
Over 660 patents have been given to private firms, institutions, and individual ‘bio entrepreneurs’ on animals such as chimps, monkeys, rabbits, mice, cats, dogs, and pigs that have been ‘altered’ in some way, creating an incentive to profit from harming animals.
What is an Animal Patent and How Does It Work?
Patents can be granted for organisms that aren’t found in nature. This isn’t to suggest that you can’t patent your mixed-breed dog or cat, or a better dairy cow or pig developed through years of careful breeding. It is not possible to patent a plant or animal that can be found in the wild. Animals that can be patented are those that have been genetically modified by humans and so do not exist in the wild. Because their genomes have been altered with genes or DNA from other animals or humans, these species are frequently referred to as “transgenic” animals. Scientists modify these creatures to make them exhibit desirable features for research or experiments.
Animal Patents: Who Issues Them?
Animal patenting is prohibited in several nations. When the Harvard OncoMouse patent reached the Canadian Supreme Court in 2002, the court determined that higher life forms, such as mammals, are not patentable. Belarus, Brazil, China, Denmark, India, Ireland, Netherlands, Norway, the Philippines, Russia, and Thailand are among the countries that have joined Canada in banning animal patents. Animal patents are granted by the European Patent Office, the United Kingdom, Australia, and Japan, in addition to the United States.
There are two notable constraints on the availability of animal patents in the United States patent system: (1) a utility restriction requiring the invention be helpful or beneficial to society, and (2) a moral restriction that prohibits patents on human/animal chimaeras.
Patents for transgenic animals generally meet the utility requirement because they are utilised for helpful research, while ideas directly connected to humans are not protected by patents. For inventions that are against public policy or morality, the European Patent system contains extra exclusions. Non-technological factors, such as animal welfare, ethical implications, and environmental dangers, are taken into account during the patent process under this framework. Furthermore, the European Patent system considers the advantages to humans obtained from the invention against the suffering of the associated animals when considering whether or not to grant an animal patent. Several organisations believe that these non-technological issues should be adopted in the US.
Animal Patents: The Great Debate
The American Anti-Vivisection Society (AAVS), the Alternatives Research & Development Foundation (ARDF), and PatentWatch are among the organisations that oppose animal patents. “Animal patents give an incentive to damage animals for financial benefit,” these organisations claim. They say that manipulating these animals results in their misery and exploitation, particularly for animals bred to have a flaw or ailment that increases their study worth. Opponents cite two patents as examples of exploitation: (1) a patent for creating rabbits with eye mutations that are utilised for research on human eyes, and (2) a patent for producing beagles with compromised immune systems that are used for research on lung infections.
The Past
Abstract ideas, natural phenomena, and natural laws are not patentable subject matter, according to the Supreme Court. In the end, the question is whether a living entity should be classified as a natural phenomenon. The majority of people believe that only inanimate items can be patented by the government, although this is not true.
The USPTO declared in 1987 that “non-naturally occurring, nonhuman, multicellular biological organisms, including animals, are now considered the patentable subject matter.” The “Oncomouse,” a mouse genetically modified to develop tumors that mimic human diseases, received the first patent for an animal from the USPTO in 1988. The United States was the first country in the world to grant an animal patent.
The public questioned the USPTO’s judgement. In 1987, Congress took a closer look at the problem and contemplated imposing a ban on animal patents, but ultimately decided that non-human subject matter would continue to be patentable. Furthermore, numerous animal rights organizations attempted but failed to stop the patenting of animals.
The role of The American Anti-Vivisection Society (AAVS)
The American Anti-Vivisection Society (AAVS) thinks that patenting sentient creatures is an unethical and inappropriate use of the patent system.
In 2008, the US Patent and Trademark Office granted AAVS’ request to revoke a patent for rabbits whose eyes were purposefully injured to serve as a model for “dry eye” disorders in people. Furthermore, the government has rejected certain contentious proposed patents, such as the “humanzee,” a half-human, half-chimp hybrid. The patent application was refused by the USPTO in 2005 because it was too human.
As policymakers debate how to best safeguard intellectual property, this has been one of the most contentious issues. The US Patent and Trademark Office has established that plants and nonhuman animals can be patented since the 1980 case of Diamond v. Chakrabarty, in which the US Supreme Court held that a living microorganism is patentable. These policy decisions have sparked a discussion in Congress about whether animals should be patentable. Living creature patenting is unique for three reasons: the invention is alive; the innovation can occasionally reproduce itself; and the invention cannot always be fully defined for patent specification purposes, necessitating the invention’s deposit for patent purposes.
Patent law in the United States changed in 1999, allowing anyone or any organisation to file a challenge to any new patent. If a challenger is unhappy with the USPTO’s ruling, he or she can appeal to the Federal Circuit Court or even the Supreme Court. This has allowed activist groups like the American Animal Welfare Society (AAVS) to dispute some of the animal patents that have been awarded, such as the rabbit and beagle patents, in an attempt to have them revoked. Many of these patents have been revoked, such as the beagle patent, which was revoked in 2004 after a request for reexamination was filed.
Conclusion
Patenting represents an erroneous sense of human control over animal existence, as well as the legitimacy of profiting off others’ potential pain, misery, or plain inability to choose one’s own faith. As a result, it’s been suggested that producing transgenic animals, which is encouraged by patenting, may result in more animal suffering (because of the inherent ambiguity of the techniques), as opposed to how animals are handled in general through selective breeding and crossbreeding.
Another intriguing point to examine is the negative environmental impact of animal patenting. This relates to the release of transgenic animals into the wild after they have been “created” and patented, which may constitute a harm to biodiversity. The importance of motivation must be emphasised once more. Technological advancements bring much-needed improvements to specific procedures or ease of labour, but they might also bring costs that aren’t considered straight away.
Animal patents are neither legally valid nor morally acceptable, and associations that work for the animals will hopefully put a stop to a system that treats animals as if they were human inventions.
References
https://www.animallawsection.org/animal-patents/
https://aavs.org/our-work/campaigns/animal-patents/
Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (“[T]he laws of nature, physical phenomena, and abstract ideas have been held not patentable.” (citing Parker v. Flook, 437 U.S. 584 (1978)).
“Bioethics and Patent Law: The Case of the Oncomouse,” WIPO Magazine (2006)
