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History of Genetics Lecture
Kevles Discusses Issues Involving 'Patenting Life'

By Rich McManus

On the Front Page...

Masur Auditorium was transformed into one of the city's largest law school classrooms on Apr. 17 when Dr. Daniel Kevles, a Cal Tech professor of humanities and author who is soon to join the history faculty at Yale University, gave the second History of Genetics lecture, cosponsored by the DeWitt Stetten Jr. Museum of Medical Research at NIH and NHGRI. His talk, compressing the 208 years of patent law history that have elapsed since Thomas Jefferson drafted the field's original dicta in 1793, concluded that ethical and moral claims about patenting life forms "are here to stay, both in the United States and Europe."


Of course Jefferson couldn't have anticipated that life forms would become the object of patent attempts. That didn't come until the 20th century, when plant biologists first sought such rights. "The first efforts failed," Kevles reported, "due to an 1889 tenet which held that you can't patent the trees of the forest or the plants of Earth." The so-called "product of nature" doctrine emerged, forbidding consideration of patenting any living thing.

Dr. Daniel Kevles signs copies of his books during NIH visit.

However, in 1930, the Plant Patent Act ruled that new varieties of plants that reproduce asexually could be patented; the key distinction now was that such life forms were no longer the products of nature, but of breeders.

Kevles said all was quiet on the life-patenting front until 1972, when a General Electric microbiologist named Ananda Chakrabarty developed a bacterium that gobbled up oil slicks, an invention with obvious commercial appeal. His effort to win patent protection lasted 8 years and reached the Supreme Court, which voted 5-4 on June 16, 1980, that "aliveness" was irrelevant to patentability, and that "Chakra-barty's bugs were 'new compositions of matter,'" Kevles explained. "The decision marked the opening of a new era in the history of patent law."

At the same time Chakrabarty's appeals were wending through the courts, the field of recombinant DNA was developing, giving rise to a new industry. Thus it was no surprise that such institutions as the Pharmaceutical Manufacturers of America, recent start-up Genentech, the American Society of Microbiologists, the regents of the University of California, and various patent law associations filed "friend of the court" briefs supporting Chakrabarty.

The Supreme Court's decision had cultural resonance, too; Kevles showed several newspaper cartoons of the time featuring Frankenstein as exemplar of the horrors of tinkering with life. But public apprehension failed to inhibit further efforts to patent life forms. Kevles reviewed the Harvard transgenic mouse case, which resulted, after 5 years of court battles, in award of "the first patent on a living animal" in April 1988. "This provoked a flood of ethical objections, but these were not new — there had been vigorous objection to Chakrabarty," Kevles recounted.

Much of the objection was "quasi-religious in nature," he said. The rulings in Chakrabarty and the Harvard mouse case seemed to verge, at least in some quarters of the popular imagination, on the conclusion that "life has no vital or sacred property."

In a series of congressional hearings held in 1987 and 1989, two sides appeared to square off in the debate over patenting forms of life: the biotechnology industry and research-based universities on the "pro" side, opposed by a loose confederation of clerics, environmentalists and farmers whose unofficial spokesperson seemed to be well-known Washington gadfly Jeremy Rifkin.

In the last decade, scientists have proposed to patent genes without knowing what they do or produce; this has raised its own set of scientific objections. But such qualms are countered by concerns that we may lose our global competitive economic advantage if we forswear such efforts.

Kevles ended his talk with discussion of grassroot and "green" objections in Europe to liberal extension of patent protection to new life forms. Ethical criteria already figure explicitly in European patent policy, and they will likely play more of a role in the American debate, he predicted.

Kevles, who has written several popular books including In the Name of Eugenics: Genetics and the Uses of Human Heredity (1985), The Code of Codes: Scientific and Social Issues in the Human Genome Project, edited with Leroy Hood (1992), and The Baltimore Case (1998), described himself at the outset as "a longtime fan of the NIH." He is also a member of the NIGMS advisory council. Although his talk was unavoidably legal in tone, he poked fun initially at the ascent of patent law from little-regarded backwater of legal training to its current preeminence. He told the story of a congressional hearing a dozen years ago in which Rep. Mike Synar (D-Okla.), "a very wry man," said, "Even most lawyers don't pay attention to patent law. It's too arcane, and awfully dull. It's not on the bar exam, so the hell with it."

Kevles emphasized, "We can no longer casually dismiss it. Patent law is now recognized for what it's really always been — a branch of political economy. And now it's also becoming a branch of ethics."

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