Law and the Multiverse Retcon #6: Orphan Black Redux

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.

14 responses to “Law and the Multiverse Retcon #6: Orphan Black Redux

  1. I doubt it would have any hope of saving the show’s legal-babble. However…

    While the clones themselves cannot be patented, might some process for cloning itself be patented? (Say, treating donor ova with a dilute aqueous solution of 3 mg/cc resublimated thiotimoline, resulting in a reduction of the failure rate from ~97% down to ~14%.) In which case, how would that affect the legal status of the clones produced by the process?

    • A method for producing non-human clones can certainly be patented. The Roslin Institute was able to do just that. The parts of their original application that claimed cloning methods (as opposed to claiming the clones themselves) eventually issued as patents such as 6,147,276. Note the claim language: “A method of reconstituting a non-human mammalian embryo, comprising …” (emphasis added).

      There were some patent applications filed out of the research of Hwang Woo-suk that claimed methods for producing human clones, but the applications were not pursued, probably because much of the work coming out of his lab was tainted by fraud.

      Without a test case it’s hard to say for sure whether a method for producing a human clone could be patented, but I tend to think it could, much like any other method of assisted reproduction. But patenting a method for producing something, whether it be a metal alloy, a computer chip, or a cloned animal, does not give any claim over the thing produced by that method (or an identical thing produced by a different method).

      And ultimately, no amount of patent law finagling is going to get around the 13th Amendment (in the US) or the Canadian equivalent.

  2. James Pollock

    So you’re left with two possibilities:
    1) the writers don’t know enough law, and just tried to fake it with something that sounded legal enough for unsophisticated viewers, or
    2) the fictional lawyers on the show aren’t troubled by ethics concerns, such as a duty not to mis-state the law, and therefore try to get their way with vulnerable individuals unlikely to take their matters to a legitimate lawyer by lying about the law and their clients’ claims.

  3. Of course, even if patent law were going the other way such that corporations could patent animal clones, the idea of such patent rights giving the corporation actual ownership of a human clone such as Orphan Black would run smack dab against the Thirteenth and Fourteenth Amendments. You cannot own a person, full stop, and the Orphan Black clones being fully human without sufficient tinkering to raise doubt about them belonging to the same species as the rest of us prevents any argument about whether they’re actually persons or not.

  4. But the clones on the show have a serial number coded into their DNA. That was how Cosima was able to figure out that the Dyad Institute claimed ownership of them. Would that alteration of the gene sequence, even if its in the non-active parts of the DNA chain, be sufficient to create a patentable product (putting aside the “ownership of people” aspect that it also implies)?

    • James Pollock

      Perhaps we’re in the wrong sphere of law here.
      If the genome was manually modified, perhaps copyright applies?

    • From existing laws and recent court decisions, probably not. They might have altered the DNA to have a barcode on it, but all that would mean would be that there might be some possibility that they would be able to patent how they did it.

      Besides the fact that I’m pretty sure you can’ t have a secret patent like this, especially not trying to actually enforce it for decades, even without a formal statement of what a human is, this is still something that any judge would take one look at, take one look at the clones, and call it attempted slavery.

      • James Pollock

        Seems to me that under a strict reading, it does.
        17 USC 102a(5)
        (No, I don’t believe that a court would actually interpret it that way. Then again, I don’t buy computer software as a “literary work”, either, except for the works of Infocom.)

        If copyright applies, then you resolve the short peried of patents, because copyright has a much longer term than patent, and you get to figure out exactly what constitutes a “derivative work”, for the clan members who become pregnant.

        Cut me some slack… I’m just trying to create a third option, that the lawyers said “patent” when they meant to say “copyright”, in addition to the previous solutions already offered (lawyers are intentionally lying when they’re talking about patent, or the writers just didn’t know.)

      • I was responding to Ann’s comment, not yours.

      • Was not trying to be rude, but my points were on her comments, not to whatever you were asking slack to be cut for.

      • James Pollock

        “I was responding to Ann’s comment, not yours.”

        Yes, that’s fairly obvious now that I look at the formatting with caffeinated eyes.

        “not to whatever you were asking slack to be cut for.”
        That was a prospective request, not a reaction. I think we’re all fairly sure that prohibition of slavery is going to keep a corporation from owning people, regardless of the origins of those persons.

        I was also thinking along the lines of perhaps patenting the method of achieving some goal by non-human but human-like organisms. That would change the date of the patent application, from the birth of the clones to just before you put them to work in the mines, or whatever. On the other hand, I suppose the novelty would be an issue, since this idea isn’t novel, having appeared in fictional works as varied as Blade Runner and R.U.R.

  5. 1) Even if Dyad did somehow patent the clones, would that necessarily imply ownership of them? Even more so if they were trying to patent their DNA – iPhones are patented, but lots of people carry them around and do whatever they want with them. Would carrying around patented DNA be any different?
    2) Apparently Sarah “used her patented material” several years before the patent was made public. Would that nullify the patent?
    3) What are the relevant laws in England?

    • James Pollock

      “iPhones are patented, but lots of people carry them around and do whatever they want with them.”

      That’s because of “first sale” doctrine. Once you sell something, you’ve sold it, and retain no rights in it. Until you sell it, though, you can maintain control. To me the interesting law around the iPhone was related to anticircumvention law (17 USC 1201). Iphones were sold with the ability to connect to only one carrier’s network, and anti-circumvention prevents users from modifying their devices to work with others. For a while, it was specifically prohibited, then was authorized, and now (as of last time I looked) is illegal again, and a result of tri-ennial rule-making by the Librarian of Congress. Fun stuff.

  6. Arthur Monteath-Carr

    Of course, for purposes of the show, Dyad only has to think it has an enforcable claim, and the clones have to believe that either 1) they do, 2) they don’t, but it is far more trouble to go public than to go into hiding, and 3) Dyad and the Fishcopalians et al are crazy enough to proceed with their plans regardless of the reality of patent law.

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