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656 PATENTABLE SUBJECT MATTER
representatives. Whatever their validity, the contentions now pressed on us should be
addressed to the political branches of the Government, the Congress and the Executive,
and not to the courts.
Congress is free to amend 101 so as to exclude from patent protection organisms
produced by genetic engineering. Cf. 42 U.S.C. 2181(a), exempting from patent
protection inventions “useful solely in the utilization of special nuclear material or
atomic energy in an atomic weapon.” Or it may choose to craft a statute specifically
designed for such living things. But, until Congress takes such action, this Court must
construe the language of 101 as it is. The language of that section fairly embraces
respondent’s invention.
Accordingly, the judgment of the Court of Customs and Patent Appeals is Affirmed.
Dissent of Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice
MARSHALL, and Mr. Justice POWELL join. [Omitted.]
Questions:
1.) Why can one not patent naturally occurring material? After all, the Intellectual Property
Clause speaks of “inventions and discoveries.” Is it a theistic argument that nature has a
divine “inventor” and that He does not like others taking credit for His work? Is it a
Lockean argument that there should be enough and as good left over for others and thus a
part of nature can never be removed from the common heritage of humankind? Or is it an
implicit theory about how best to balance property-based incentives and the broad
accessibility of a public domain on which others can build? If the latter, why is nature the
right place to draw that line?
2.) The court argues that, even if there are knotty ethical and environmental issues involved
in patenting living things, they should not be dealt with in patent law. Do you agree?
3.) What were the key arguments against granting this patent? Why was the court not
convinced?
James Boyle, Endowed by Their Creator?:
The Future of Constitutional Personhood
In Jeffrey Rosen & Benjamin Wittes, eds., The Brookings Institution,
Constitution 3.0: Freedom and Technological Change 194–213 (2011)
Presently, Irving Weissman, the director of Stanford University’s
Institute of Cancer/Stem Cell Biology and Medicine, is contemplating
pushing the envelope of chimera research even further by producing
human-mouse chimera whose brains would be composed of one
hundred percent human cells. Weissman notes that the mice would be
carefully watched: if they developed a mouse brain architecture, they
would be used for research, but if they developed a human brain architecture
or any hint of humanness, they would be killed. 1
1
D. Scott Bennett, Chimera and the Continuum of Humanity: Erasing the Line of Constitutional