ELECTRONIC NEWSLETTER

Abelman, Frayne, &Schwab

On April 12, 1988, the U.S. Patent and Trademark Office issued the first ever patent for a mammalian life form to Harvard scientists Philip Leder and Timothy Stewart for a genetically engineered mouse (U.S. Patent No. 4,736,866). The "Oncomouse" as it was called was altered to be highly susceptible to breast cancer (the name of the mouse was derived because it was engineered to carry a specific gene called an "activated oncogene" which increased the mouse's susceptibility to cancer thus making it more suitable for cancer research).

The invention was called the product of the year by a major financial magazine. Although the patent was owned by Harvard Medical School, because it was developed with funding from DuPont, an earlier commercialization arrangement left DuPont entitled to an exclusive license of the Patent.

DuPont has claimed patent protection on any anticancer product ever derived from the mice.

The '866 Patent claimed, "...a transgenic non-human mammal whose germ cells and somatic cells contain a re-combinant activated oncogene sequence introduced into said mammal..."

The claim explicitly excluded humans, apparently reflecting moral and legal concerns about patents on human beings, and about modification of the human genome. Remarkably, there were no U.S. courts called to decide on the validity of this patent. The reason for this could be that, although this was the first patent for a mammalian life form, it was not the first patent for any life form at all. As you know from reading past TWIPH's, the first patent for a life form was issued on March 31, 1981 to Dr. Ananda Chakrabarty for his genetically engineered bacterium (which were famously used to "eat up" the oil spilled in the Exxon Valdez disaster in Prince William Sound, Alaska in1989). That Chakrabarty patent was the subject of an intense legal debate that culminated in the famous 1980 Supreme Court decision (Diamond v. Chakrabarty) that held that manmade living organisms were patentable.

Also on April 12, 1912 Clara Barton died at the age of 90. What does Clara Barton have to do with Intellectual Property History?

Well, Barton, was the American nursing pioneer, who, at the outbreak of the Civil War, was working as a U.S. Patent Office clerk when she started collecting provisions and medical supplies for the Union Army. Restless with her limited role in Washington and undeterred by War Department regulations and prevailing stereotypes, Barton decided to begin distributing supplies and tending to the wounded and dying despite life-threatening conditions. For her work on the war front instead of in the background, she became known as "The Angel of the Battlefield."

Almost singlehandedly she founded the American Red Cross, which has provided comfort in times of crisis since 1882.