Chimera and the Continuum of Humanity - Emory University School ...

358 EMORY LAW JOURNAL [Vol. 55
of producing human-animal chimera and for the chimera themselves. 84 The
Newman Application does not cover all controversial human-animal chimera;
it covers only chimera containing less than fifty percent human DNA. 85
Newman and Rifkin did not intend to actually produce chimera if a patent was
granted to them. 86 Instead, they had a no-lose plan to discourage chimera
research. First, if the patent were granted, they intended to prevent anyone else
from producing chimera for the term of the patent. 87 Second, even if the patent
was denied, Newman and Rifkin hoped to take away some of the economic
incentives of engaging in chimera research by setting a precedent that chimera
are unpatentable. 88 Regardless of the result, they sought to spark a public
debate on the commercialization and commodification of life. 89
While the PTO has rejected the Newman Application several times, its
reasoning is ambiguous and may ultimately be driven more by emotion than
sound legal principles. 90 It initially appeared that the PTO would invoke the
April 21, 1987 notice and reject the Newman Application as a “claim[]
directed to, or including within [its] scope, a human being,” presumably barred
by the Thirteenth Amendment. 91 However, in an April 2, 1998 media
advisory, the PTO invoked a new rationale in apparent opposition to the
Newman Application. 92 The media advisory stated that it was the PTO’s
position that “inventions directed to human/non-human chimera could, under
certain circumstances, not be patentable because, among other things, they
84 Rick Weiss, Patent Sought on Making of Part-Human Creatures, WASH. POST, Apr. 2, 1998, at A12.
Newman is a cellular biologist at New York Medical College and Rifkin is a prominent opponent of
biotechnology. Id.
85 Magnani, supra note 35, at 450.
86 Weiss, supra note 84.
87 Greene, supra note 60.
88 Id.
89 Weiss, supra note 84.
90 On April fools’ day 1998, within hours of reading U.S. patent application No. 08/993,564, the
Honorable Bruce Lehman did something no other commissioner of patents had done in the 200year
history of America’s oldest government agency. He stepped before a cluster of
microphones and announced that the patent would never be approved. No half-human
“monsters” would be patented, Lehman declared angrily, or any other “immoral inventions.”
Dowie, supra note 52, at 49.
91 Daniel, supra note 65, at 117–20.
92 Id. at 118–19. Due to confidentiality concerns, the PTO was not commenting directly on the Newman
Application but it was clearly the impetus for the media advisory. See Media Advisory, U.S. Patent &
Trademark Office, Facts on Patenting Life Forms Having a Relationship to Humans (Apr. 1, 1998),
http://www.uspto.gov/web/offices/com/speeches/98-06.htm [hereinafter Media Advisory].