1 Patents and the Constitution: Transgenic Animals: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice, 100th Cong., 1st Sess. 22 (1987) [hereinafter Hearings] (statement of Commissioner Donald Quigg).

2 Note, Altering Nature's Blueprints for Profit: Patenting Multicellular Animals, 74 Va. L. Rev. 1327, 1343 (1988)Google Scholar (citing In re Merat, 519 F.2d 1390 (C.C.P.A. 1975)).

3 Transgenic Animal Patents: Two Year Moratorium Request, 50 The Pink Sheet (F-D-C Reports, Inc.) No. 50, at T&G-9 (Apr. 18, 1988) [hereinafter Transgenic Animal Patents].

4 Note, Patents on People and the U.S. Constitution: Creating Slaves or Enslaving Science?, 16 Hastings Const. L. Q. 221, 225 (1989)Google Scholar.

5 Id. at 225.

6 See generally id. at 223; Note, Genetic Engineering: Innovation and Risk Minimization, 57 Geo. Wash. L. Rev. 100 (1988)Google Scholar.

7 Id.; House Passage of Animal Patent Bill, 36 Pat. Trademark & Copyright J. (BNA) No. 897, at 499, 499-502, 520 (Sept. 15, 1988).

8 Hearings, supra note 1, at 22.

9 Article I of the Constitution gives Congress the power to legislate “[t]o promote the Progress of… useful Arts, by securing for limited Times to … Inventors the exclusive Right to their Discoveries.” U.S. Const, art. I, § 8, cl. 8. “In contrast, the PTO has only statutory authority to apply the legislative scheme enacted by Congress.” Note, supra note 4, at 248 (emphasis added) (citing Graham v. John Deere Co., 383 U.S. 1, 6 (1966)). If the PTO rules on a patent's constitutionality it oversteps its authority. Id.; see Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803) (holding that the Supreme Court has the ultimate authority to interpret the United States Constitution).

10 See infra notes 119-33 and accompanying text (discussion of rights granted under a patent and comparison of constitutional provisions).

11 “Transgenic” means, literally, to transfer genes. Thus, transgenic animals are those with transplanted genetic material.

12 Note, supra note 2, at 1334 (citing Adler, Biotechnology as an Intellectual Property, 224 Science 357, 357-61 (1984)Google Scholar).

13 See, e.g., City of Milwaukee v. Activated Sludge, Inc., 69 F.2d 577, 582-83 (7th Cir. 1934) (granting patent for septic tank using aerobic bacteria); Cameron Septic Tank Co. v. Village of Saratoga Springs, 159 F. 453, 462 (2d Cir. 1908) (granting patent for septic tank that uses anaerobic bacteria to decompose solid waste).

14 447 U.S. 303 (1980).

15 Id.

16 Id. at 305.

17 It is not a coincidence that this was the first microorganism to be granted a patent. Among the groups staunchly opposed to granting patents for living organisms were ecologically concerned groups. See Hearings, supra note 1, at 234-56 (response of Committee on the Introduction of Genetically Engineered Organisms into the Environment, prepared for the National Academy of Sciences); Case Note, Patents — A Live, Man-Made Micro-Organism Is Patentable Subject Matter Under 35 U.S.C. sec. 101 — Diamond v. Chakrabarty, 30 DRAKE L. Rev. 635, 643 n.85 (1980) (quoting amicus brief regarding potential environmental hazards). These groups feared unknown dangers which could arise from releasing scientifically altered life into the ecological chain. They believed much more research needed to be done before society should give its sanction to transgenic animals by allowing them to be patentable subject matter. Id. The PTO may have had these groups in mind when it granted the first patent for an organism which would significantly increase our ability to clean up major ocean pollution. Thus, change takes place incrementally.

18 35 U.S.C. §§ 161-164 (1982). The Plant Patent Act provides patent protection for a person who invents or discovers, and asexually reproduces, a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.

19 7 U.S.C. §§ 2321-2583 (1988). The Plant Variety Protection Act extends the Plant Patent Act to give patent protection for newly invented or discovered sexually reproduced plants.

20 Chakrabarty, 447 U.S. at 310-11.

21 One of the four categories listed in section 102 of the Patent Act (process, machine, manufacture or composition of matter) need not be specified in the patent application claims. An invention may fall within two or more of these categories. 35 U.S.C. § 112(1982). Animal patents would fall into the categories of either manufacture or composition of matter. Ex parte Allen, 2 U.S.P.Q.2d (BNA) 1425, 1426 (Bd. App. & Inf. Apr. 3, 1987).

22 The basic requirements for patentability are outlined in the Patent Act as follows: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” 35 U.S.C. § 101 (1982) (emphasis added).

In addition to the requirements that an invention be new and useful, it must also be novel and nonobvious. See id. at §§ 102 (novelty), 103 (nonobviousness).

23 Chakrabarty, 447 U.S. at 311.

24 Case Note, supra note 17, at 638.

25 Chakrabarty, 447 U.S. at 311-12.

26 Id.

27 Id. at 313.

28 Id.

29 Id. at 315. The patent laws were enacted “ ‘to promote the progress of sciences and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaption to the uses of society.” Case Note, supra note 17, at 643 n.83 (citing Kendall v. Winsor, 62 U.S. 322, 328 (1859)).

30 See supra note 22 (discussing requirements for patentability).

31 227 U.S.P.Q. (BNA) 443 (Bd. App. & Inf. 1985). The patent covered an altered maize seed, maize plant and tissue culture.

32 Id.

33 Note, supra note 2, at 1342.

34 2 U.S.P.Q.2d (BNA) 1425, 1427 (Bd. App. & Inf. 1987).

35 “The exact technique employed was polyploidy, in which the fertilized eggs of the oysters were subjected to pressure for a specific length of time to induce a change in the number of chromosomes in the eggs. The eggs were then cultivated and became oysters that were sterile and therefore edible year round, unlike normal oysters, which are inedible during their summer breeding season.” Note, supra note 2, at 1343 n.98.

36 Ex parte Allen, 2 U.S.P.Q.2d (BNA) at 1426.

37 35 U.S.C. § 100 (1982); Hearings, supra note 1, at 22.

38 U.S. Patent No. 4,736,866 (1988).

39 In Vitro means “outside the living body; in a test tube or other artificial environment.” Webster's Third New Int'l Dictionary 1190 (1965).

40 Oncogenous substance is one which “tend[s] to cause tumors.” Webster's Third New Int'l Dictionary 1565 (1965).

41 Transgenic Animal Patents, supra note 3, at T&G-9.

42 Transgenic Mouse To Be Marketed Early Next Year For Approximately $50; Mouse Will Develop Breast Cancer, 31 The Blue Sheet (F-D-C Reports, Inc.) No. 47, at 5-6 (Nov. 23, 1988) [hereinafter Transgenic Mouse].

43 The crucial part of a patent application is contained in the claims. The claims contain a detailed description of the invention and define the scope of the patent. See 35 U.S.C. § 112 (1982). It is common practice to have several claims which comprise a patent, each contained in a numbered paragraph, and which progress from the broad to the specific. The broader the claim the wider the scope of the patent. The narrower claims often incorporate by reference the previous claims; but the broad claims might be disallowed as written, when examined individually. An inventor granted a patent on a broad claim has the legal right to prevent other inventors from making, using or selling any invention which falls within the broadly defined scope of his or her patent.

44 The inventors of the mouse were granted a patent which covers all mammals with human breast cancer DNA. The mouse was the first animal to be created under these specifications. The inventors, however, own the rights to any future animals created under their patent. See Note, supra note 2, at 1359 (criticizing the breadth of the patent granted and asserting that it actually gives a disincentive to companies to use the mouse for cancer research). A commercial company which slightly modified the genetic structure of the mouse to cause the mouse's cells to produce a cure for cancer, would find that the inventors of the Harvard mouse held the rights to their invention because the invention depended on the patented mouse. Perhaps because this is the first animal patent granted, the PTO accepted much broader claims than were necessary.

45 N.Y. Times, Nov. 17, 1988, at A26, col. 1.

46 B. Furrow, S.Johnson, T. Jost & R. Schwartz, Health Law 962-72 (1987); Dresser, Research on Animals: Values, Politics, and Regulatory Reform, 58 S. Cal. L. Rev. 1147, 1185 (1985)Google Scholar.

47 Most transgenic animal research involves the insertion of genes from humans into other organisms because of convenience. Dresser, supra note 46, at 1185.

48 N.Y. Times, Nov. 17, 1988, at A26, col. 1.

49 Transgenic Mouse, supra note 42, at 5-6; N.Y. Times, Nov. 17, 1988, at A26, col. 1.

50 N.Y. Times, Nov. 17, 1988, at A26, col. 1.

51 Hearings, supra note 1, at 372 (testimony of Dr. Leroy Walters that since October of 1984 “[t]here has been a veritable explosion of research in the area of germline interspecies transfers.“).

52 N.Y. Times, Dec. 27, 1988, at Cl, col. 2.

53 id.

54 Transgenic Drug-Producing Livestock Herd To Be Developed By Tufts University Under $1 Mil. R & D Pact, 31 The Blue Sheet (F-D-C Reports, Inc.) No. 42, at 8-9 (Oct. 19, 1988) [hereinafter Transgenic Drug-Producing Livestock]; N.Y. Times, Dec. 27, 1988, at Cl0, col. 3.

55 N.Y. Times, Dec. 27, 1988, at Cl0, col. 3. A freak accident involving the building's air conditioning system killed most of the mice in early December. The NIH estimates that it will be several months before they are replaced. Id.

56 Sickle Cell Anemia Animal Models, Such As Transgenic Mouse System, To Be Developed Under NHLBI Proposal, 31 The Blue Sheet (F-D-C Reports, Inc.) No. 21, at 3-4 (May 25, 1988).

57 N.Y. Times, Dec. 27, 1988, at C10, col. 3-6. So far, no side effects caused by ingestion of the flesh of the animals have arisen.

58 News Capsules: Genemarker/TIL Trial, 51. The Pink Sheet (F-D-C Reports, Inc.) No. 4, at 2, 17 (Jan. 23, 1989); Boston Globe, Jan. 31, 1989, at 8, col. 5-6.

59 Boston Globe, Jan. 31, 1988, at 8, col. 5-6.

60 Id.

61 Id.

62 NIH TIL/Gene Marker Study Design Justifies Additional Risk, 51 The Pink Sheet (F-D-C Reports, Inc.) No. 1, T&G-6-7 (Jan. 2, 1989); Five Patients in NIH TIL/Gene Marker Trial Showed Reduction In Tumor Size, 32 The Blue Sheet (F-D-C Reports, Inc.) No. 31, at 8,9 (Aug. 2, 1989); see also infra note 109 (description of recombinant gene technology and gene therapy).

63 N.Y. Times, Dec. 27, 1988, at C10, col. 3-6.

64 Jaroff, The Gene Hunt, Time, Mar. 20, 1989, at 62.

65 Id.

66 Id. at 67.

67 Id.

68 Note, supra, note 4, at 226 n.33.

69 JarofF, supra note 64, at 67.

70 See generally 1 D. Chisum, Patents ch. 1 (1987).

71 Id.

72 See, e.g., Ex parte Murphy, 200 U.S.P.Q. (BNA) 801 (Bd. of App. 1977) (holding that a gambling machine would not be patentable subject matter if it were prohibited by law).

73 For example, a patent granted for a new carburetor would not extend to the entire automobile. If the carburetor cannot be used outside of a car, the inventor will have to go to the owner of the car patent in order to use his or her invention. The inventor, however, will have the right to stop others from making, using or selling the carburetor.

74 See House Passage of Animal Patent Bill, supra note 7, at 520.

75 See, e.g., M. Shelley, Frankenstein (1818).

76 House Passage of Animal Patent Bill, supra note 7, at 520; Hearings, supra note I, at 57-66 (testimony of John Hoyt, President of the Humane Society of the United States).

77 Attanasio, The Constitutionality of Regulating Human Genetic Engineering: Where Procrealive Liberty and Equal Opportunity Collide, 53 U. Chi. L. Rev. 1274, 1306 n.162 (1986)Google Scholar (citing Golding, Ethical Issues in Biological Engineering, 15 Ucla L. Rev. 443, 464 (1968)Google Scholar).

78 Id. at 1306.

79 “Diligence is the mother of good fortune, and idleness, its opposite, never led to good intention's goal.” M. De Cervantes, Don Quixote pt. II, bk. IV, ch. 38, at 724 (P. Matteux trans. 1949) (1615).

80 Elmer-Dewitt, The Perils of Treading on Heredity, Time, Mar. 20, 1989, at 70–71Google Scholar.

81 Id.; see also Note, supra note 4, at 242-47.

82 Hearings, supra note 1, at 63 (testimony of John Hoyt, President of the Humane Society of the United States).

83 Elmer-Dewitt, supra note 80, at 70-71.

84 “ ‘Genotype’ refers to an organism's specific genetic constitution or the composition of one or a limited number of genes under investigation.” Note, supra note 4, at 222 n. 10 (citing W. Klug & M. Cummings, Concepts of Genetics 589 (1983)).

85 Id. at 236.

86 House Passage of Animal Patent Bill, supra note 7, at 520. Because of the strict regulation of research on human beings, genetic alteration similar to that which is being done to animals, although technically possible, is not legally possible.

87 See supra note 1 and accompanying text.

88 The bill in its entirety states:

The Transgenic Animal Patent Reform Act amends Section 271 of title 35, United States Code. Most of the Act's focus is on transgenic farm animals, but Section 4 addresses the problem of the patenting of human beings. Following is the amendment.

Section 1. Short Title.

This Act may be cited as the “Transgenic Animal Patent Reform Act.”

Section 2. Infringement of Patent.

Section 271 of title 35, United States Code, is amended by adding at the end the following new subsection:

• “(g)(1) It shall not be an act of infringement for a person whose occupation is farming to reproduce a patented transgenic farm animal through breeding, use such animal in the farming operation, or sell such animal or the offspring of such animal.

• “(2) Notwithstanding the provisions of paragraph (1), it shall be an act of infringement for a person to sell the germ cells, semen, or embryos of a patented transgenic farm animal.

• “(3) For purposes of paragraphs (1) and (2) —

• “(A) the term ‘transgenic farm animal’ means a farm animal whose germ cells contain genetic material originally derived from another other than the parent of the farm animal; and

• “(B) the term ‘farm animal’ means any animal used or intended for use as food or fiber.”

Section 3. Specification for Patent Application.

H.R. Rep. NO. 100-888, 100th Cong., 2d Sess. 2, reprinted in 1988 U.S. Code Cong. & Admin. News 1, 2.

89 House Passage of Animal Patent Bill, supra note 7, at 499.

90 Id.

91 Id.

92 Id.

93 Hearings, supra note 1, at 115-16.

94 Id. at 77.

95 Id. at 44-47.

96 Id. at 115-16.

97 House Passage of Animal Patent Bill, supra note 7, at 499.

98 35 U.S.C. § 271 (1988).

99 House Passage of Animal Patent Bill, supra note 7, at 537.

In order for an invention to be patentable, the claims of the patent must enable one skilled in the art to make and use the invention. The inventor's description of his invention must be complete. In exchange for this release of information to the public domain, the inventor is granted a seventeen year monopoly on the rights to exclude others from making, using or selling the invention. If the description is not complete, the inventor has not fulfilled his part of the bargain. See generally 2 D. Chisum, Patents § 7 (1987).

100 House Passage of Animal Patent Bill, supra note 7, at 537.

101 “Germ plasm” is defined as “the hereditary material of the germ cells,” by which hereditary characters are transmitted. Webster's Third New Int'l Dictionary 952 (1965). The national germ plasm bank:

House Passage of Animal Patent Bill, supra note 7, at 537.

102 Id. at 539.

103 Hearings, supra note 1, at 22.

104 House Passage of Animal Patent Bill, supra note 7, at 539.

105 35 U.S.C. sec. 101 in its entirety now reads:

Section 101. Inventions Patentable

35 U.S.C. § 101 (1988).

106 House Passage of Animal Patent Bill, supra note 7, at 499.

Id. at 515.

The fact that development of these technologies is not imminent, however, does not justify ignoring the future danger. See Green, Genetic Technology: Law and Policy for the Brave New World, 48 Ind. L.J. 559, 560 (1973)Google Scholar (noting that important societal decisions are often made by small elite groups and are submitted to Congress for ratification without the benefit of indepth study of the long-term policy issues).

108 N.Y. Times, Dec. 27, 1988, at C19, col. 6.

Note, supra note 4, at 226.

Id. at 226 n.32 (citing President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Science, Splicing Life: A Report on the Social and Ethical Issues of Genetic Engineering with Human Beings 45-46 (1982)).

To illustrate, parents with a confirmed tendency to develop sickle cell anemia could have the strand of DNA removed from an egg, and fertilize the egg in vitro, and then replant it in the womb. The resulting child will not have the tendency to develop the disease, nor the capacity to pass the tendency to his or her children.

110 Schmeck, Gene Altered Animals Enter New Commercial Era, N.Y. Times, Dec. 27, 1988Google Scholar, at C10, col. 6.

111 House Passage of Animal Patent Bill, supra note 7, at 516. In fact, a project begun in January 1989 to map the entire genetic code of a human being is expected to take fifteen years. Jaroff, supra note 64, at 62. Genetic material is intricate and the public's knowledge is primitive. The delay provides a chance to face and resolve difficulties now before they become major societal problems.

112 House Passage of Animal Patent Bill, supra note 7, at 499.

113 The proposed definition addresses only one of these problems: that of underinclusiveness. The author believes it is better to err on the side of tolerance and allow the courts to extend legal rights to all creatures who can appreciate their plight of being different in society. The proposed definition leaves discretion to the courts to identify creatures as “human beings” on a case-by-case basis.

114 Note, supra note 4, at 228 (citing Legal Times, June 15, 1987, at 16, col. 1).

115 House Passage of Animal Patent Bill, supra note 7, at 499.

116 See generally id. at 499-502 (final discussion before passage of Animal Patent Bill). Passage of the Animal Patent Bill evidences Congressional intent to revise the parameters of animal patents, rather than eradicate them.

117 Id. at 520. The addition of one new genetic characteristic turned Professor Leger's mouse into a new, patentable creature. Thus, any new, artificially introduced characteristic would yield a human being who is legally not a human being.

118 See supra notes 110-11 and accompanying text (discussing future blurring of the lines between species).

119 G. Gunther, Constitutional Law 857 (1985).

120 “The fundamental nature of an interest in property is a possessory right to exclude others from use or enjoyment of the subject matter.” Note, supra note 4, at 231. Property law distinguishes tangible personal property (choses in possession) from intangible personal property (choses in action). “A patent represents a personal property right in an intangible thing … [but] patents do not confer possessory rights in the article in which the inventor has patent rights.” Id. at 231-32.

121 Attanasio, supra note 77, at 1309.

122 See U.S. Const, art. I, § 8, cl. 8 (patent clause). The Supreme Court has not resolved the question of whether the thirteenth amendment by its own operation does anything more than prohibit slavery and involuntary servitude. City of Memphis v. Greene, 451 U.S. 100, 128-29 (1981). A liberal interpretation of the thirteenth amendment only proscribes “conditions that could reasonably be called symptoms of a slave society, inability to raise a family with dignity caused by unemployment, poor schools and housing, and lack of a place in the body politic.” Note, Jones v. Mayer: The Thirteenth Amendment and the Federal Anti-Discrimination Laws, 69 Colum. L. Rev. 1019, 1026 (1969)Google Scholar. It is thus unlikely that Congress would have great success in regulating the patenting of human beings by using the thirteenth amendment.

123 See supra note 9.

124 Technology in the future may lead to the ability to both add and subtract characteristics, so that animals can be created which sequentially span all possibilities between two currently distinct species.

125 Human reproduction, either sexual or cloned, of the new type of human being would be replication of the invention because the resulting progeny would contain the new, altered characteristics.

126 Note, supra note 4, at 238.

127 See Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).

128 Cf. Maddox v. Maddox's Admin., 52 Va. 804 (11 Gratt 1854) (holding that a condition in a will that unreasonably restrains legatee's ability to marry is void); Davidson v. Wilmington Trust Co., 23 Del. 1, 2 A.2d 285 (1938) (holding that the natural effect of a condition in a will encouraged divorce and is thus invalid).

129 1 D. Chisum, supra note 70, at § 1.

130 “Use” is defined as: The application of knowledge; the employment of skills; the accomplishment of an objective aided by something designed for such accomplishment; or function. See generally Webster's New Int'l Dictionary 2523 (3rd ed. 1976); Black's Law Dictionary 1382 (5th ed. 1979).

131 See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984).

132 The term “sell” is defined as: “To deliver into slavery for money… to give into the power of another.” Webster's Third New Int'l Dictionary 2272 (1968).

133 Even children, whose autonomy is limited, are not owned by their parents. The state will not hesitate to intervene where a parent is grossly negligent in his treatment of a child. See, e.g., State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988) (concerning the criminal prosecution of a mother who burned parts of her child's body). All human beings are legally autonomous. If a human being is unable to be responsibly autonomous or exercise legal judgment, courts can appoint guardians to exercise substituted judgment. See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

134 See supra notes 1-8 and accompanying text; see generally Note, supra note 4 (interpreting the potential for patenting human beings as applying only to patents on new genotypes and not on the human beings).

135 See generally Hearings, supra note 1.

136 Id. at 77-92 (testimony of Jack Doyle, Director, Agricultural Resources Project, Environmental Policy Institute, Washington, D.C.).

137 See, e.g., Transgenic Drug-Producing Livestock, supra note 54, at 8-9.

138 See Furrow, supra note 46, at 957-61 (discussion of past abuses of medical research at the Nuremburg Trials and the Tuskegee Syphillis Project). The latter involved the injection of a live syphillis virus which was injected into hundreds of poor black individuals, and the progress of the disease was monitored for over 25 years. No treatment was allowed to the victims, though penicillin was known to cure syphillis. Id.

139 Dresser, supra note 46, at 1149.

140 See id. at 1148-49.

141 Until a new gene combination which has application in human beings is discovered, the owner of the altered mouse patent can market his or her invention as a research tool to scientists. The patent gives the inventor incentive to explain exactly what he or she has done to other scientists, and to sell the mice to them so that many more researchers can work toward great discoveries.

142 Altered genes are patentable compositions of matter. 35 U.S.C. § 101 (1982).

143 Useful processes are patentable subject matter. 35 U.S.C. § 101 (1982).

144 As the author discussed above, it is unclear what the researcher would gain from patenting the ultimate realization of his or her invention, the actual human being who receives the benefit of the discovery. See supra notes 125-33 and accompanying text.

145 It is conceivable that, with the ability to add and subtract characteristics, creatures will be created which span a continuum between two currently distinct species.

146 N.Y. Times, Dec. 27, 1988, at Cl, col. 2.

147 See generally Attanasio, supra note 77, at 1274 (discussing the theoretical analysis of constitutional rights of a genetically altered super-race relative to a majority of normal human beings).

148 See, U.S. Patent No. 4,736,866 (1988).

149 See, e.g, I. Kant, Critique of Pure Reason (1781); B. Brody, Life and Death Decision-Making (1988); Fletcher, Indicators of Humanhood: A Tentative Profile of Man, 2 Hastings Center. Rep. 1 (Nov. 1972)Google Scholar.

150 I. Kant, supra note 149.

151 See, e.g., T. Ingold, What is an Animal? 110-11, 116-17 (1988).

152 D. Hamburg & E. McCown, The Great APES 262-66 (1979).

153 Id. at 273.

154 T. Ingold, supra note 151, at 90-95; see also id. at 120-21 (analogy between a vervet monkey warning another vervet monkey about an approching python and a human warning another human about an approaching tiger).

155 D. Hamburg, supra note 152, at 265-66.

156 Id. at 159.

157 Id. at 3, 457-62.

158 Id. at 26, 73-120,491-99.

159 See, e.g., J. Steinbeck, Travels with Charley 23-24, 31-32, 71, 99-100, 111-12, 124, 130, 137-38, 147-48, 150-51, 160, 196-99, 237-38 (1962) (description of Charley's methods of communicating, reacting, expressing emotion and personality).

160 U . S . Lombardo, Paraprofessionals Working with the Severely and Profoundly Retarded 88-90, 111-13 (1982) (listing skills achievable by profoundly retarded persons).

161 Id.; see, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (discussing substituted judgment exercised for those incompetent to make their own decisions). For a full discussion of the rights of the developmentally disabled, see Note, The Incompetent Developmentally Disabled Person's Right of Self-Determinalion: Righl-to-Die, Sterilization and Institutionalization, 15 Am. J.L. & Med. 333-61 (1989)Google Scholar (authored by William A. Krais).

162 See B. Brody, Life-and-Death Decision-Making 33 (1988) (defining the meaning of life for the purposes of withdrawing treatment from terminally ill patients); U.S. Lombardo, supra note 161, at 89, 111-12 (listing the affective capacities of mentally retarded persons).

163 Human beings have 23 pairs of chromosomes. Chimpanzees have all but one of the same pairs of chromosomes. The genetic material of the chimpanzees is therefore 95.65% identical to the genetic material of humans. J. Buettner-Janusch, Origins of Man 460-61 (1966). The genetic material of the other great apes is less close to that of homo sapiens. Id.

164 House Passage of Animal Patent Bill, supra note 7, at 502.

165 There is no question of Congress’ power to amend the Patent Act. This power comes directly from the Constitution. U.S. Const, art. I, § 8, cl. 8.

166 It is possible that, in the future, a class of sub-humans may be developed who can be trained as quasi-animals to man spaceships or nuclear plants. “Gene-grafting might make it possible to develop human astronauts equipped with prehensile feet, no heels, and an ape-like pelvis suitable for life in the low gravity and cramped quarters of a space ship.” Note, supra note 4, at 222 n.8 (citing Haldane, Biological Possibilities for the Human Species in the Next Ten Thousand Years in Man and his Future 337, 354-55 (G. Wolstenholme ed. 1963)). However, such an aim would likely constitute “subjugation through genetic bondage.” Id. at 233. The social inferiority of such beings “would be a form of subjugation, so that their mere existence would constitute a form of slavery.” Id. at 233.

Such exploitation, however, is unlikely to be quickly sanctioned by our society. If such creatures were created an alternate legal category would have to be created before the enslavement would be possible. This kind of development is generally considered morally repugnant, and members of Congress have decided not to encourage researchers to strive in this direction.

167 See Oxford English Dictionary 473 (2d ed. 1989).

168 Fletcher, Indicators of Humanhood: A Tentative Profile of Man, 2 Hastings Center Rep. 1, 2 (Nov. 1972).

169 Id. at 1.

170 Id. at 2.

171 Case by case definition will be necessary because many animals now possess “higher faculties” listed in section (i). See supra notes 149-65 and accompanying text (discussion of animal characteristics which resemble human characteristics). Section (i) gives courts the equitable power to step in to protect creatures who are “human enough” to merit protection.

172 For example, severely retarded persons whose functional abilities are less than those of many animals.

173 See notes 125-34 and accompanying text.

174 See generally Home Passage of Animal Patent Bill, supra note 7, at 499.

175 Green, supra note 107, at 560.

176 Compare House Passage of Animal Patent Bill, supra note 7, at 515 (stating that the new techniques do not radically depart from traditional breeding practices, and are unlikely to raise new and difficult issues) with Hearings, supra note 1, at 348 (statement of John F. Barnes) (arguing that genetic research could lead to genetic aberrants being released into the environment, interbreeding with unaltered animals and eventually producing “Frankenstein Monsters”).

177 “[G]enetic technology is advancing so rapidly that it may surpass the ability of our existing institutions to control it.” Gore, & Owens, The Challenge of Biotechnology, 3 Yale L. & Pol'y Rev. 336, 338 (1985)Google Scholar.

178 Attanasio, supra note 77, at 1340.

179 Id. at 1341.

180 In an industry conducting research of great public concern, unless the government explicitly guarantees protection of trade secrets, government compelled disclosure does not constitute a taking. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).