`Hot Potato' for Congress: Patents for Engineered Animals

ON April 21, the United States Department of Agriculture plans to dedicate its new Plant Molecular Biology Laboratory in Beltsville, Md., as a focal point for the genetic engineering of crops. Meanwhile, Colorado State University has announced a new program of research on genetically engineered farm animals, sponsored by Albemarle Farms of Charlottesville, Va. These are two of the latest developments in the effort to apply genetic engineering down on the farm. But as research progresses, industrialists who will bring the new ``products'' to market wonder if they will have the patent protection needed to make a reasonable return on their investment.

Patenting life - especially animal life - is a political ``hot potato'' that the last Congress dropped but which the new Congress may take up in earnest. Rep. Robert Kastenmeier (D) of Wisconsin introduced two bills this month related to the issue. One would provide some patent-infringment protection for farmers who breed and sell patented animals; the other would give the USDA responsibility for regulating work on genetically engineered animals used on the farm.

The congressional Office of Technology Assessment (OTA) has released an April-dated study on the issue. It notes that there is little controversy over plant patents. Plant breeders have had them for decades. But patenting animals raises ethical questions about the traditional view of what is a human material invention.

OTA explains that a patent grants the owner temporary property rights. But federal, state, and local governments can still regulate how inventions are used. Thus concerns about the safety of releasing novel organisms into the environment lie outside the debate over patenting itself. Also, ethical concerns about the ``sanctity'' of organic life transcend the strictly legal issue of patentability as the law now stands.

Groups such as the Industrial Biotechnology Association, seize on these points to argue that such concerns are no reason to restrict animal patents. Yet OTA study director Kevin W. O'Connor explained in an interview last November that the very language of patent law raises ethical issues when applied to animals.

It defines as patentable ``any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement [thereof].'' The US Supreme Court has held that this definition does not include laws of nature, physical phenomena, or abstract ideas. The US Constitution would prohibit applying it to humans. The US Patent and Trademark Office noted this when it excluded humans in its 1987 ruling that permits patenting genetically engineered higher animals. Mr. O'Connor said this raises the question of whether life is more than ``a composition of matter.'' ``Have we reduced the entire animal kingdom to the status of a tennis ball or a toaster oven?'' he asked.

Theologians and ethicists made this point a year ago. The National Council of Churches, the Presbyterian Church, the Humane Society, the New Creation Institute (Missoula, Mont.), and other groups held a three-day discussion. The panel expressed concern that patenting animals would foster the view that they are merely ``human creations, inventions, and commodities.''

The OTA notes that such ``arguments based largely on theological, philosophical, spiritual, or metaphysical considerations are ... difficult to resolve, since they usually require the assumption of certain presuppositions that may not be shared by other persons.''