This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts. Or not so old posts in this case. Barely a week ago I wrote this post about the TV series Orphan Black. Today the US Court of Appeals for the Federal Circuit handed down a decision relevant to that post. Spoilers ahead!
As discussed in the original post, part of the plot of Orphan Black is concerned with a corporation called the Dyad Institute that has apparently created a number of human clones. In the show it is claimed that Dyad has patented the clones and thus owns them and, incidentally, their biological children. In the original post I explained several reasons why this was legally impossible in both the US and Canada.
On May 8th the Federal Circuit decided a case called In re Roslin Institute, No. 2013-1407 (Fed. Cir. May 8, 2014). This case only further bolsters my argument that the clones cannot be patented because it holds, quite literally, that clones cannot be patented.
The Roslin Institute is where Dolly the sheep was created, the first cloned mammal. The Institute sought to patent the method used as well as “A live-born clone of a pre-existing, nonembryonic, donor mammal, wherein the mammal is selected from cattle, sheep, pigs, and goats” (among other, similar claims). Note, by the way, that they didn’t claim cloning mammals generally. Not only did they not have scientific support for it, but a claim to a cloned human would have certainly failed for reasons discussed in the earlier post.
Anyway, the Patent Office rejected the clone claims and the Institute appealed to the Federal Circuit. The court observed that “discoveries that possess ‘markedly different characteristics from any found in nature,’ are eligible for patent protection.” In re Roslin Institute, slip op. at 6 (quoting Diamond v. Chakrabarty, 447 U.S. 303, 310). However, a clone is by definition identical to an existing organism and possesses no markedly different characteristics.
The Institute tried to quibble with this, arguing about phenotypical differences that were the result of environmental factors, differences in mitochondrial DNA , and the mere fact that the clones existed at a different time than the original, but the Federal Circuit wasn’t buying it. None of it was sufficient to make the clones markedly different enough to be patentable.
In conclusion, another nail in the coffin for patented clones.