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Legal Fight Over Patents on Life

Biologist Stuart Newman of the New York Medical College in Valhalla is trying to get a patent on a "humanzee"--a chimeric animal made from human and chimpanzee embryos. Not because he really wants to create one, but because he wants to prevent other people from making one, and to challenge the rules for patenting life. Together with Jeremy Rifkin, president of the Foundation on Economic Trends in Washington, D.C., Newman is embroiled in a strange legal contest with the government that entered a new phase this week as the duo announced that--to their delight--the Patent and Trademark Office (PTO) had turned down their patent application.

Newman and Rifkin have never seen a humanzee, much less created one. But on Wednesday, they put out a press release saying that they had applied for U.S. patents on many types of chimeras. The government actually rejected this application 3 months ago, says Rifkin, but he kept the information quiet until now because he wanted to avoid publicity while drafting an appeal. That appeal was completed this week, and Rifkin's attorney submitted it to the PTO on Wednesday.

"If we win," Rifkin claims, "we'll hold the patent in trust for 20 years" to prevent others from commercializing human-animal combinations. But he seems equally enthusiastic about losing: "We will appeal all the way," he says, even to the Supreme Court if possible. Rifkin wants to provoke a debate about what it means to be "human" and to undermine the legal basis for patenting organisms--particularly those containing human genes.

The first round of the contest shows that the PTO has begun the debate right where the duo wants it, says Rifkin: on the question of whether it is acceptable to patent human tissue. In its rejection letter, the PTO says that Newman's claimed invention--which relies on the use of human embryos--"includes within its scope a human being, and as such falls outside the scope" of what the PTO regards as legally patentable.

Some patent attorneys suspect, however, that government lawyers may sidestep the big issues in future proceedings. For example, says Paul Clark of the Clark and Elbing law firm in Boston, lead attorney on Harvard's "oncomouse" patent, the courts could simply dismiss Newman's claims because he has never created the exotic chimeras he aims to patent.