Logan

This is a short, slightly ranty post about the new Wolverine movie Logan.  It’s a great movie, but a throwaway bit of exposition struck a lawyerly nerve.  Major spoilers below.

Midway through the film it’s revealed that Laura (aka X-23) is the product of a Transigen corporate project to produce customized clones of mutants.  The lead scientist on the project, Zander Rice, mentions that the medical staff should not think of the clones as children or people but rather as “it”, covered by patents and copyrights.  “Whoa, whoa, whoa,” I thought, “Why did they have to go and drag intellectual property attorneys into this?”

Admittedly the film is set in 2029, so the law may have changed, but it would have to change drastically indeed to allow a human being to be the subject of patents or (even more so) copyrights.

First, the US and Mexico both forbid patenting humans (and I suspect the same is true in every country, explicitly or implicitly).  In the US, “no patent may issue on a claim directed to or encompassing a human organism.”  Mexico prohibits patents on “the human body and the living matter constituting it.”  Apparently that extends to “humans, human cloning, or genetic modification of human germ lines.”  Clarke, Modet & Co, Current examination practice in Mexico: Which biotech inventions are allowable by the Mexican Patent Office?

Further, at least in the US it would also be difficult to obtain a patent on a naturally occurring mutation, which seems to be what Transigen did.  AMP v. Myriad, 569 US ___ (2013); Mayo v. Prometheus, 566 US ___ (2012).

The copyright claim is pure hogwash.  There’s no legal basis for copyright applying to a person.  I suspect copyright was included because not everyone knows what a patent is and there’s some vague word-association between cloning, copying, and copyright.

Second, even if Transigen managed to get a patent on the cloning process it used or the mutations its scientists found, that would not take any legal rights away from the children anymore than a pacemaker company has legal authority over a patient with a patented pacemaker.  Admittedly, as I recall Gabriella’s video describes what’s happening as “illegal in the US and Canada”, suggesting it is somehow legal in Mexico, but even if that’s true for purposes of the movie, that still leaves unanswered questions.  Transigen is apparently working with the US military, so it presumably expected to eventually export these children (or other clones based on them) to the US or other countries.

Finally, none of this makes any sense!  Patents are public by definition. Copyrighted works don’t have to be published, but they’re only enforceable through public litigation.  If I were running an evil child soldier conspiracy the last thing I would do is base my business model on patents and copyrights!  Even trade secrets are dicey.  Theoretically one could take a wayward former employee to mandatory binding arbitration, which is less public than a trial, but good luck finding an arbitrator willing to go along with turning tortured children into killers.  I know arbitration has a bad rap, but it’s not that monstrous.

In sum: Logan is a good movie, and none of this affects the core plot.  It’s enough that Transigen is an evil company doing illegal things to children.  There are certainly plenty of real examples of that!  But I felt honor bound to try to salvage the reputation of IP attorneys.