What makes a human?


By Philip Cohen CREATURES created from a mixture of human and animal cells cannot be patented, says the US Patent and Trademark Office. The ruling marks the beginning of a legal battle that opponents of biotechnology hope will undermine thousands of patents on organisms carrying human genes. Stuart Newman, a developmental biologist at New York Medical College, and anti-biotech activist Jeremy Rifkin applied for the patent last year. Their intention was to use it as a test case to question the validity of other patents. “I have problems with thinking of life as intellectual property,” says Rifkin, who runs the Foundation on Economic Trends in Washington DC. The part-human embryos mentioned in the patent have not been created— but neither are they complete science fiction. Scientists have mixed cells from goat and sheep embryos to create viable “chimeras” containing a mixture of cells from both species. In their patent, Newman and Rifkin propose similar experiments, mixing various human cells with the embryos of chimpanzees, pigs or other animals, They suggest that such embryos might prove useful for research or have medical applications. The patent office rejected the application because it “embraces a human being”. Ownership of such a patent could be seen as violating the 13th amendment to the US Constitution, which prohibits slavery. But the applicants argue that their claims are not so different from those made in thousands of other patents that use human materials. If an embryo with one human cell “embraces” a human being, they say, why doesn’t a bacterium, sheep or cow that contains a human gene? If his patent isn’t valid, claims Rifkin, neither are thousands of others that underpin the emerging field of molecular medicine. In particular, he points to a patent application made by scientists at Advanced Cell Technology (ACT) in Worcester, Massachusetts, who have created embryos by fusing human cells with cow eggs stripped of their chromosomes (This Week, 11 July 1998, p 4). ACT’s project, which aims to grow cloned cells and tissues for transplant, continues to make headlines around the world—with some commentators alarmed about the project’s perceived assault on the unique identity of the human species. To pursue their argument, Rifkin and Newman are appealing against the patent office’s decision, and hope eventually to obtain a definitive ruling on the patent’s legality from the US Supreme Court. Legal experts are divided. John Barton of Stanford University School of Law in California says the patent illustrates that there is no legal definition stating how much human material an organism must contain before it is considered human. “It’s an uncertain line and it is going to have to be drawn at one point,” he says. But Rebecca Eisenberg, a patent expert at the University of Michigan Law School in Ann Arbor, argues that patents are supposed to foster innovation, rather than being used to make wider legal and political points. “It’s bogus and I won’t be surprised if the courts simply refuse to hear it,
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