June 28, 2004, HOUSTON CHRONICLE

RESPONSIVE RESEARCH

Protests end beagle patent, leave open questions

Copyright 2004 Houston Chronicle

http://www.chron.com/cs/CDA/ssistory.mpl/editorial/2650244

Late last month, M.D. Anderson Cancer Center quietly canceled a patent few people knew it possessed: the commercial right to make sick beagles. Hoping to market a new drug for chemotherapy patients, the hospital had patented a technique for pumping research beagles with lethal fungi. Its decision to give the patent up is significant -- but for different reasons than one might expect.

According to the patent application, beagles were chosen in part because their docile nature makes them good research subjects. Unsettling as this sounds, though, M.D. Anderson's decision to drop the patent had little to do with whether winsome, friendly animals merit a different fate than homely critters do. Neither did the decision reflect a different attitude toward using animals for research -- something the hospital defends. Instead, the episode showed something simpler. When enough individuals complain, even giant institutions must react.

Two days before the cancellation, the U.S. Patent and Trademark Office voiced its decision to re-examine the patent's validity. The decision came after a challenge by the American Anti-Vivisection Society and PatentWatch Project, a nonprofit group that monitors patent policy but does not have a position on animal testing in general. The groups questioned if it was truly "novel" to infect a beagle with a lethal fungus, and if a sickened beagle really was "a machine, manufacture, or inventor's composition of matter." Both designations are necessary to earn a U.S. patent.

The groups now plan to challenge patents covering 500 other species of animals.

"Right now we have an excellent federal policy, the Animal Welfare Act, that discourages the use of animals in research whenever possible," explained PatentWatch director Andew Kimbrell. "But patents are given to encourage invention. Our patent policy encourages researchers to try and create novel animals, novel ways to kill them and novel ways to market them."

Ultimately, the coalition hopes to argue against such patents before the Supreme Court, which legalized patenting living organisms in 1980, opening the floodgates for America's multibillion dollar biotech industry. There's little chance of slamming those gates shut with a new ruling.

M.D. Anderson, meanwhile, says its patent cancellation was unrelated to the PTO decision. Actually, said Dr. Margaret Kripke, M.D. Anderson's executive vice president, the hospital was reacting to animal rights protests begun months before.

"The issue really came to our attention through the activity of animal rights groups," Kripke said. "We are very sensitive to their concerns, and we look at the groups' Web sites."

Animal welfare groups and ordinary citizens began writing about the beagles to Congress and to M.D. Anderson. In response, the hospital revisited the patent -- and decided it was neither commercially nor ethically viable. This doesn't mean the cancer center has ruled out patents of other animals, including mice, Kripke said. But in this case, the hospital concluded, commercializing the suffering of dogs did not seem justified.

As technology and our understanding of animals both grow, striking an ethical balance between the two gets harder for almost everyone. Once individuals make judgments, though, the beagle case shows how to make those judgments count.

It's really not for patent officers to craft our policy on complex social questions. Americans instead must hash these issues out themselves -- by electing lawmakers who will enforce their ethical standards and supporting advocacy groups that push for their beliefs.