Abstract

     The chimera was a mythological creature with a lion’s head, goat’s body, and serpent’s tail. Because of recent advances in biotechnology, such permutations on species are no longer the stuff of myth and legend. The term “chimera” has come to describe a class of genetically engineered creatures composed of some cells from one species, which thus contain genetic material derived entirely from that species, and some cells from another species, containing only genetic material from that species. Scientists have created a goatsheep chimera or “geep” which exhibits physical characteristics of both animals. Likewise, scientists have also used the tools of modern molecular biology to create human-animal chimeras containing both human and animal cells. While none of the human-animal chimeras hitherto created have exhibited significant human characteristics, the synthesis of human-animal chimeras raises significant ethical concerns. The advent of human-animal chimera technology naturally raises the issue of whether development of human-animal chimeras should be encouraged by the issuance of patents to inventors of human-animal chimeras.
     This article explores the patentability of human-animal chimeras. First, it surveys the law governing the patentability of living things. Prior to the 1970s, the courts evinced great hostility to the patentability of living things. However, courts became more amenable to the patentability of living things and have held that manmade living things, such as microorganisms, plants, and animals, that do not appear in nature are patentable subject matter under 35 U.S.C. § 101. Although the federal courts have never passed on the patentability of human-animal chimeras or other forms of human inventions, the United States Patent and Trademark Office (PTO) has indicated that human inventions are unpatentable and rejected an application claiming certain human-animal chimeras because the broadest reasonable interpretation of the claimed chimeras encompassed a human being. Furthermore, although Congress has failed to expressly exclude human beings from the scope of patentable subject matter under § 101, Congress has restricted the patentability of human organisms through its appropriations power by enacting the Weldon Amendment that proscribed the use of federal funds provided for the operation of the PTO for the issuance of patents on human organisms. However, no statutory or constitutional source provides a definition for humanity despite the obvious importance of one in the human-animal chimera context. This article also evaluates various proposed standards for a chimera to qualify as human and concludes that the preferred standard that best reflects moral, intuitional, and biological conceptions of humanity classifies an organism as human if it is characterized by the higher mental faculties and physical characteristics associated with human beings to a significant degree.
     Under the Supreme Court’s broad interpretation of § 101 in holding living things patentable, indicating that anything made by man is patentable subject matter, human-animal chimeras, including those considered human, as well as other human inventions are patentable subject matter. Despite Congress’s apparent attempt to foreclose the patentability of human inventions using its appropriations power, analysis of the patent law and the Weldon Amendment and its legislative history indicates that Congress did not intend to create a conflict with § 101’s broad scope of patentable subject matter when it enacted the Weldon Amendment. Thus, a court would likely hold that the Amendment did not completely foreclose patentability of human inventions. Likewise, a patent for a human invention does not run afoul of the Thirteenth or Fourteenth Amendments. Furthermore, human-animal chimeras satisfy the patent law’s utility requirement inasmuch as they have practical utility and would not be found unpatentable under the moral utility doctrine. Similarly, the patent law doctrines of novelty and nonobviousness do not foreclose the patentability of human-animal chimeras. Therefore, at least some human-animal chimeras may be patentable under some circumstances, and this universe of potentially patentable humananimal chimeras may include chimeras that are considered human.