In my family I am the scientific “runt of the litter,” so a number of the arguments made this week before the Supreme Court in the case of “Association for Molecular Pathology v. Myriad Genetics” were beyond my comprehension. However, it was clear to me that the holding in this case could have far-reaching implications for the Center’s question “What does it mean to be human?”
A great many of the justices’ questions to counsel related to the impact that a prohibition on the patenting of human genes would have on scientific research and (frequently marketable) innovations. The plaintiff corporation, already the holder of patents or licenses on seven genes, argued that failure to protect the patenting of genes would have a profoundly negative effect on research and creativity. Their argument is not frivolous. The U.S. Patent and Trademark Office has already granted more than 4,000 patents to universities and corporations as well as to others who have invested in decoding certain genes.
As the justices grappled with these significant questions, I was reminded of a discussion regarding genetic patenting among a relatively small group of participants at the Chatauqua Institution in upstate New York a few years ago. A startling handout featured a genetically engineered “humanzee,” a being part human-like and part chimpanzee-like. It had undeniable appeal in that, although it was not identifiably “human,” it nevertheless had the capacity to perform all sorts of tasks most humans find unpleasant……for example, cleaning toilets, pumping septic systems, and killing other beings in battle.
A “humanzee” would be, in effect, a sort of subclass of living being that would not have the capacity for self reflection and analysis that characterizes humans, but that could nevertheless perform tasks humans usually undertake with reluctance.
This week the justices appeared to be searching to find a compromise solution…..one that protects innovation but avoids granting patent rights to those persons, institutions, and corporations that isolate parts of DNA which already exist and are found circulating freely in the blood. In short, if nature made it, rather than the inventor, then it can’t be patented.
But nature didn’t make a “humanzee.” Would the innovation of a “humanzee” therefore be patentable, and if so, by whom? Leaving aside the toilets and sewers, who could have the patent on a class of slave-like beings, or on a quasi-human army? As the court deliberates the delicate differences between DNA and cDNA in an appropriate effort to protect innovation, we can only hope that in making their distinctions the justices give thoughtful consideration to “what” may be innovated (and therefore presumably be patentable). It is sobering to contemplate a ”Myriad” spending billions of dollars to successfully develop a useful (if only partly human) species being rewarded with a patent for their innovation…..and then feared for the staggering power of the creations they own.