Gene-splicing: court tosses issue to public

In ruling that a "man-made" microbe is patentable, the US Supreme Court has resolved a narrow legal question and issued an awesome challenge. The people of the United States, through their elected representatives and legislative bodies, must decide the extent to which they believe humans should seek to manipulate organic life at its fundamental level and under what restraints this should be done. The courts cannot make that decision for them.

This is the overriding significance of the ruling. The finding that existing patent law protects artificially tailored microorganisms is of secondary importance. Congress can change the law at any time.And even if the court had denied patent rights, companies could protect their novel microbes as trade secrets while patenting the processes in which they are used. This latter patent right never was contested.

However, those who believe that genetic engineering -- redesigning the genetic makeup of living organisms -- raises profound moral and social issues had hoped that the court would pronounce on these issues in making its decision. This the court has pointedly declined to do.

Chief Justice Warren E. Burger, in writing the majority decision, noted that some of the briefs submitted to the court " . . . present a gruesome parade of horribles. Scientists, among them Nobel laureates, are quoted suggesting that genetic research may pose a serious threat to the human race." However, he added , "The grant or denial of patents on microorganisms is not likely to put an end to genetic research or to its attendant risks. Legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown. . . ."

Then, directly addressing the question of how social policy should be made, he wrote: "What is more important is that we are without competence to entertain these arguments -- either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the government, the Congress and the executive, and not to the courts."

Even the dissenters to the narrow 5-to-4 decision agreed on this fundamental point. Their objection was to the interpretation of existing patent law as protecting microorganisms. In the dissenting opinion written on behalf of himself and of Justices Byron R. White, Thurgood Marshall, and Lewis F. Powell Jr., Justice William J. Brennan Jr., acknowledged, "I agree with the court that the question before us is a narrow one."

The decision specifically clears the way for a patent to be granted on an oil-eating bacterium developed by Ananda Chakrabarty, now at the University of Illinois, while working for the General Electric Company. Strictly speaking, the bacterium is not a product of "genetic engineering." Dr. Chakrabarty used techniques based on conventional microbial crossbreeding rather than the gene-splicing involved in directly altering an organism's genetic instructions. Nevertheless, the decision opens the way for granting patents to products of gene-splicing as well. There are many dozens of such patent applications pending.

Exponents of the new biotechnology industry, which plans to use microbes to make many valuable chemicals, hailed the decision as removing a roadblock. But, as Leslie Glick, president of Genex Corporation in Rockville, Md., noted in a comment typical of the prevailing industry attitude: "I don't think it will make much difference." The industry, he said, would have gone ahead with its development anyway.

On the other hand, a Washington public interest group, the Peoples Business Commission, which has identified itself with the larger social issues, commented that "the Brave New World that Aldous Huxley warned of is now here." The group had argued: "To justify patenting living organisms, those who seek patents must argue that life has no 'vital' or sacred property; that all of life's properties can ultimately be reduced to the 'physico-chemical.'"

These basic issues as to what concept of life a society upholds and to what extent humans should manipulate life forms now must be decided by society as a whole.