Inventing animals

Chapter 4

Inventing animals

Cressida Limon

No one has ever authorized himself – it is indeed a question of status and convention – to say of God that he invents, even if, as people have thought, divine creation provides the ground and support for human invention; and no one has ever authorized himself to say of animals that they invent, even if, as it is sometimes said, their production and manipulation of instruments resemble human invention. On the other hand, men can invent gods, animals, and especially divine animals.¹

We are not patenting life. God, I suppose, has a patent on life. We are patenting technology.²

In 1989 the United States’ Office of Technology Assessment (‘OTA’) published a special report on Patenting Life.³ In the Foreword to the Report the Director of the OTA, John H. Gibbons, alluded to two now prominent signifiers of patent law’s turn to biotechnology: Diamond v. Chakrabarty⁴ and Harvard’s ‘OncoMouse’.⁵ The United States Supreme Court’s decision in Diamond v. Chakrabarty in 1980 is credited as the first instance of a patent granted for a living organism as such.⁶ Chakrabarty claimed as his invention (a product of human ingenuity) a microorganism, a bacterium of the genus pseudomonas.⁷ This new bacterium had the characteristic of being able to break down crude oil and was considered a potentially important tool for dealing with oil spills. Chakrabarty’s case is cited as the source of the famous statement by Chief Justice Warren Burger of the United States Supreme Court: ‘anything under the sun that is made by man’ is patentable.⁸ This phrase was supplemented by the conclusion that the limit of patentable subject matter was not based on a distinction between the living and the non-living, but between the natural and the man-made.⁹ Man could now invent and patent other, non-human living beings.

OncoMouse is the name given to the first non-human animal patented in the United States. OncoMouse refers to mice that have been genetically engineered to develop cancer in order to be used in biomedical research. OncoMouse was brought to the attention of many feminist scholars and activists via the work of Donna Haraway.10 Haraway highlighted the point that the patent was not just for a mouse that could be used as a research tool, but the patent also claimed intellectual property rights to any offspring of the OncoMouse. In other words, it was a claim to the products of biological reproduction (the offspring) and indeed one could say a claim to a process of biological reproduction – the conventional breeding of unconventional mice.¹¹

Bruce Lehman, the Commissioner of the United States Patent and Trademarks Office (‘USPTO’), supposedly responded to the patent controversies by denying that the USPTO was patenting life: ‘We are not patenting life. God, I suppose, has a patent on life. We are patenting technology’.¹² This insistence on an absolute distinction between life and technology seems odd given the previous statements by the Chief Justice, and the OTA’s report titled exactly Patenting Life. The very word biotechnology marks a composite or coming together of life and technology, or more generally life and law.¹³ Lehman’s supposition about a patent-holding God points to a certain humanist anxiety and Derrida’s suggestion that with regards to invention there is a

reserve with respect to a creationist theology. This reserve is not necessarily atheistic; it can on the contrary insist precisely on reserving creation to God and invention to human beings.¹⁴

Patent law might seem an unlikely area to inquire into questions, especially critical questions, about human and non-human relations. Patent law seems to reinforce the old distinctions between persons and things, humans and non-humans, in strictly instrumental terms. Non-human animals are simply means to our ends. Although this may be an accurate representation, in this chapter I want to challenge this way of thinking about non-humans as objects of intellectual property rights. I want to draw attention to how the limits of patentability and the patentability of animals are co-constitutive. In other words, the concept of invention needs to be reconsidered in light of the invention of animals. Following Jacques Derrida I am interested in a ‘limitrophy’.¹⁵ Derrida notes that the idea of an absolute distinction (an abyss) between man¹⁶ and animal is something of an inanity.

The discussion becomes interesting once, instead of asking whether or not there is a discontinuous limit, one attempts to think what a limit becomes once it is abyssal, once the frontier no longer forms a single indivisible line but more than one internally divided line, once, as a result, it can no longer be traced, objectified, or counted as single and indivisible. What are the edges of a limit that grows and multiplies by feeding on an abyss?¹⁷

In this chapter I take the question of the invention of animals as one in which something like a limitrophy can be discerned. For reasons that I explain further below, I focus on the themes of invention and biological reproduction rather than any distinction between the human animal and the non-human animal – categories that are already determined by an anthropocentric violence.18 Invention, like language, and indeed like law, has served as one of the defining characteristics of the human. In contrast to invention, biological reproduction is considered a general capacity (or property) of living beings. Biological reproduction would be proper to life, to the living in general. What, then, is the link between invention and reproduction? In general terms it has been assumed that invention belongs to the realm of culture and biological reproduction belongs to the realm of nature. Invention is also aligned with the concept of the human and with paternity, whilst biological reproduction has been aligned with the idea of the living as such and with maternity.¹⁹ The ground upon which biological reproduction is distinguished from biotechnological reproduction (biological inventions) provides the common thread to the argument in this chapter. I argue that the distinction is grounded on an ideal of reproductive heteronormativity. This heteronormativity is also associated with western intellectual property law’s ‘militant humanism’.²⁰ Intellectual property does not simply recognise or represent non-human animals as human inventions, it is a form of law through which such distinctions are produced.

In jurisdictions that authorise the patentability of higher life forms, the possibility that humans might be next has been met with strenuous denial by the relevant authorities, including national patent offices.²¹ In Australia the exclusion of human beings from the realm of patentable subject matter has been enacted statutorily.²² There is something very unsettling about the fact that such declarations are made in the first place – declarations that are supposed to restate some ethico-juridical principle of the dignity of human beings.²³ In the next part of this chapter I look at how this statutory exclusion has been framed within a more general political discussion about how the laws of invention, the Patents Act 1990 (Cth), was imagined in relation to human beings and our biological reproduction. Following the discussion of the human exception I consider the status of transgenic organisms like OncoMouse and spidergoats. Spidergoats are goats that have been genetically modified to express spider silk in their milk. Like the human, the ethics of patenting non-human animals has been a major site of contention. Unlike the human animal, the patentability of non-human animals has been accepted in various jurisdictions (from whence some of the anxiety vis-à-vis the human comes). In many of these instances it is actually the control of the means of biological reproduction (human and non-human) that is at stake. Objections to genetic engineering based on an idea of species purity, or messing with nature type arguments, simply reinforce the masculinist humanist notion of man the inventor.

Human beings as non-patentable inventions

Human beings, and the biological processes for their generation, are not patentable inventions.24

The exception was actually something of an after-thought.²⁵ At the time the proposed Bill was referred to the Senate, a member of the Australian Democrats sought to introduce a wide exclusionary clause in relation to the patentability of plants, animals, humans, and genetic material. The proposed amendment included genes, genomes, organisms, and the ‘progeny’ of any genetically modified organisms.²⁶ The Democrat Senator, John Coulter, who proposed the amendment, gave the following explanation:

We [the Democrats] are not at this stage seeking to prevent the patenting of the techniques which may be used to manipulate genetic material, because, as I have indicated earlier, we do not have any moral or ethical objection to a discovery of the life processes and a discovery of how genes might be interpreted into different enzyme systems in cells and so on. It is the commercial ownership and exploitation which we find extremely abhorrent. It is far worse than, say, taking one’s grandmother and commercialising her in prostitution. This is prostituting the very substance of life, prostituting for commercial gain the very essence of life itself. We find that extremely repugnant.²⁷

I highlight this polemical language in order to argue that there is a broader issue at stake here. I suggest that the ethical calculation proposed here (‘it is far worse than’) is disturbing because it privileges a particular form of knowledge. The assumption that genes are ‘the very essence of life itself’ and that the ownership (and exploitation) of this knowledge of the ‘essence of life itself in the form of patenting is so heinous is based on an old and familiar rhetorical move whereby matter is subordinated to the ideal essence. Senator Coulter’s sexist language suggests that there is more at stake here in the ‘common blind spots’ that Alain Pottage refers to when he argues that both the opponents and supporters of biotechnology patents adhere to an idea of ‘nature as such’.²⁸ Pottage has also highlighted the ‘extravagance’ that marked ethico-political objections to biotechnology patents in disputes in the European Patent Office.²⁹ In this case Senator Coulter’s calculation also highlights a specific, masculine imaginary that views the (grand)maternal/matter as expendable in privileging the essence of (an idea of) life. As it was, an amendment was eventually passed by the Australian Parliament that ‘human beings, and the biological processes for their generation, are not patentable inventions’. This final version of the clause was largely based on an amendment proposed by an archconservative catholic senator, Brian Har-radine. The exclusion of human beings from potential patentable subject matter was the outcome of an unusual political debate. The parliamentary debates on the exclusion included jokes about whether you could patent a ‘position in sexual intercourse’, which followed from Senator Coulter’s argument that Harradine’s amendment was redundant.³⁰

What are the biological processes for the generation of human beings? I would expect that those words would mean the normal processes for the generation of human beings which would involve a male and a female human being in certain actions which have been the processes of the generation of human beings for perhaps six million years.³¹

In a sense reproductive heteronormativity was enlisted in the imagination as to the limits of patentability. A biological process for the generation of human beings was equated with heterosexual, procreative, intercourse. Such a process was obviously unpatentable.

The first Australian case to consider the exclusion of human beings and the biological processes for their generation from patenting was heard by the Deputy Commissioner of Patents, Herald DC in 2004.³² The claimed invention was in the field of assisted reproduction technologies (ART), specifically in vitro fertilization (IVF), and was titled ‘Method and medium for in vitro culture of human embryos’.³³ The summary of the invention gives a general overview of the research that led to the disputed invention.

The present invention results from a finding that recombinant human GM-CSF (rhGM-CSF) is effective at substantially increasing the proportion of early embryos that develop to blastocyst and increasing the proportion of early embryos that continue to expanded blastocyst and then hatched blastocyst stages of development. The net result is that a much greater proportion of embryos can now be grown to blastocyst stage and used for implantation in an IVF program in humans.

This contrasts with the mixed findings in other species, whereby only moderate and inconsistent effects on development to blastocyst stage and beyond were reported.

This finding has implications in the formulation of media for use in in vitro culturing of embryos to blastocyst stage and in methodologies of growing such embryos and in the manner in which IVF programs are conducted. It is anticipated that this invention will lead to a greater success rate in such IVF programs.³⁴

The findings refer to various research studies that were generally concerned with increasing the rates of successful pregnancies following in vitro fertilization procedures in humans35 and non-human animals (livestock species and mice). The patent specifications describe a variety of methods including the implantation of multiple embryos, the use of different media as cultures, and the identification of particular substances that might stimulate development. The important finding in the research was the positive effect that the presence of GM-CSF³⁶ had on increasing the percentage of early embryos that continue to develop to blastocyst stage in vitro. According to the specifications, previous studies had identified the ‘uterine epithelium […] as a major source of GM-CSF in the mouse uterus […] and human oviduct and uterus’.³⁷ Herald DC described it this way:

This substance [i.e. GM-CSF] is apparently present in the natural environment of the fallopian tube. The present invention involves ensuring its present [sic] in an IVF environment.³⁸

The contested claim was the method of growing preblastocyst human embryos. The Applicant argued that the claimed method did not constitute a biological process for the generation of human beings. The main argument put forward by one of the co-inventors, Associate Professor Sarah Robertson, was that a human being is ‘created at the time the pronucleii of the fertilized ovum have coalesced so as to obtain mixing of the genetic materials from the respective parents’.³⁹ The Applicant argued that their method/invention applied after the creation/generation of a human being and that therefore the method was simply a method of treating a human being.⁴⁰ The Applicant’s supporting evidence was based, curiously enough, on two recent government reports dealing with various aspects of law, ethics, and biotechnologies. The Applicant’s attorney provided the Deputy Commission with extracts from two reports: the Report of the Senate Committee on the Prohibition of Human Cloning Bill 2002⁴¹ and the Discussion Paper prepared by the Australian Law Reform Commission in relation to gene patents in 2004.⁴² The extracts from the Senate Committee’s report on human cloning were concerned with the issue of the moral status of the embryo. It was perhaps not surprising that the Applicants should rely on the submissions from conservative/religious positions on the moral status of the (human) embryo to make the argument that a human being comes into existence at a particular and specific point in time. I read this as ironic on the basis that the human exception to patentability was based on a conservative Christian perspective (Senator Harradine’s amendment) and yet here those very same perspectives were being drawn upon by the Applicant to argue that the exception to patentability did not apply in this case. Other readings are also possible. Indeed, the irony only seems possible under the condition that one assumes a radical disjuncture between science and technology on the one hand and particular religious beliefs on the other hand. On the contrary, there is no necessary incompatibility between the two.43