Half-Human Creatures, Plants & Indigenous Peoples: Musings on Ramifications of Western Notions of Intellectual Property and the Newman-Rifkin Attempt to Patent a Theoretical Half-Human Creature

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TABLE OF CONTENTS  Introduction I.   Origins of Half-Human Creatures in the Plant Patent and Plant       Variety Protection Acts and in the Corresponding Evisceration       of the "Product of Nature" Doctrine    A. The Plant Patent Act of 1930 and the Plant Variety Protection       Act of 1970    B. The "Product of Nature" Doctrine    C. The Ayahuasca Patent Case    D. Naturally Colored Cotton II.  The Moral Utility Requirement--The Frayed Connective Tissue of       Patent Law     A. Playing Dodge Ball--Chakrabarty     B. Origins & Development of the Moral Utility Requirement III. Converging Socioeconomic, Safety, and Ethical Concerns?     A. A Trilogy of Western Concerns     B. Proposed Legal Changes       1. The Marshall Trilogy Connection       2. Possibilities Within the Moral Utility Requirement       3. Possibilities Within Prior Art--Three Illustrative Problems IV.  Converging Solutions?    A. Institutional and Attitudinal Conundrums    B. Proposed Solutions for Indigenous Peoples 

INTRODUCTION

On December 18, 1997, Stuart A. Newman, a professor of cell biology and anatomy at New York Medical College, and Jeremy Rifkin, (1) long-time biotechnology critic and President of the Washington, D.C.-based Foundation on Economic Trends, filed a patent application with the United States Patent and Trademark Office ("PTO"). The Newman-Rifkin patent application covered the first-time ever production of an animal-human "chimera" that could contain up to 50% human genetic material. Among those who heard of the application, a storm of controversy followed. Many in the media dismissed the application as yet another bizarre and irrelevant ploy of Jeremy Rifkin, whom some have characterized as being something of a gadfly. (2) Seemingly lost in all the brouhaha over Jeremy Rifkin being involved in the patent application was the background of Mr. Rifkin's co-applicant, Stuart Newman, who was on the Board of Directors of the Council for Responsible Genetics ("CRG") (3), and did not share Rifkin's previous notoriety.

Just what is a chimera? According to ancient Greek mythology, (4) a chimera was a fire-breathing female monster with a lion's head, a goat's body, and a serpent's tail. In more modern times, the word is most often used to refer to something that is illusory or does not exist. However, with changes in technology, the term chimera has also returned closer to its original mythological meaning, describing a monster that may actually exist. In this context, a chimera has been likened to a hybrid.

In a hybrid, the male of one species is genetically crossed with a female of another species to produce the hybrid. A mule is an example of an animal hybrid. Hybrid corn is an example of a hybrid plant. It is produced by in-breeding corn, rather than using open pollination. (5) Hybrid mules are biologically sterile while hybrid corn is "economically sterile." That is, the yield on hybrid corn progressively deteriorates past the first generation such that farmers must go back each year to the first generation of the hybrid, (6) if they decide to grow hybrid corn in the first place.

Because of its economic sterility, hybrid corn is valued for its ability to be produced in the massive quantities that are prized in industrialized agriculture. The very sterility of hybrid corn also makes it valuable to agribusiness because farmers must return again and again to buy seed to grow each crop. Significantly, hybrid corn also requires massive inputs (such as synthetic fertilizers damaging to the environment) to grow, further increasing the dependence of the farmer on industrial agribusiness. Hybrid plants, like industrial agribusiness, are relative newcomers to America, not becoming popular in the U.S. until the 1930s. This trend represents a significant change from the pre-1930s, when it was still common for American farmers to save their seed and produce crops without having to purchase many additional inputs such as chemical fertilizers and pesticides not produced already on the farm itself. …