This Week in Intellectual Property History

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.

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.

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 in 1989).  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 man-made living organisms were patentable.

Make some intellectual property history this week!

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