Overview

The American Anti-Vivisection Society, along with the Alternatives Research & Development Foundation (ARDF) and the PatentWatch Project of the International Center for Technology Assessment, has filed a Request for Reexamination to challenge U.S. Patent # 6,924,413 — rabbits whose eyes are fixed open and then intentionally damaged to serve as models for corneal epithelial damage in humans. The Request is based on the grounds that (1) an animal is a complex life form and cannot be patented as a mere manufacture or inventor's composition of matter, and (2) the patent has not fulfilled the novelty and nonobvious requirements of the U.S. Patent and Trademark Office (USPTO). This is our second challenge to an animal patent and follows our success with having Texas A&M University drop its patent claims on sickened Beagles.

Patent # 6,924,413: Rabbits

On August 2, 2005, the USPTO issued a patent to the Japanese company Biochemical and Pharmacological Laboratories, Inc. (BPL) for rabbits whose eyes have been intentionally damaged. Both the process to inflict damage to the animals' corneas, and the damaged animals themselves are claimed under this patent. In fact, 17 out of the 28 claims filed under this patent pertain directly to the animal. While the patent specifically claims rabbits as the experimental animal (because their eyes are large and they are generally docile animals), the patent also covers any non-human mammal or fowl, including monkeys, dogs, cats, guinea pigs, rats, mice, goats, cows, sheep, pigs, and chickens, who has received the damage.

According to this patent, the rabbits' eyelids are glued open or held open using retractors so that they cannot blink, and the cornea is then treated with water-absorbing substances such as powdered sugar or salt for 20-60 minutes, until the corneal surface layer (epithelium) is damaged. These rabbits can then be used by drug researchers to test the effectiveness of medications for treating corneal epithelial damages such as 'dry eye' in humans.

By patenting an animal model of dry eye disease, however, BPL is turning injuring rabbits into a business. Animal patents provide an incentive to hurt animals for economic gain, as a patent holder receives money each time a researcher uses the patented animal model.

When companies have such a financial stake in developing animal models in order to receive patents, it becomes more difficult to promote the development and adoption of animal alternatives.

In order for the USPTO to grant the rabbit patent to BPL, the agency first made the judgment that injured rabbits somehow fall under the category of 'machine,' 'manufacture,' or 'composition of matter.' Thereafter, it was established that the steps used to damage their eyes would be "nonobvious" to a person knowledgeable of the field.

The American Anti-Vivisection Society, however, in conjunction with ARDF and the PatentWatch Project of the International Center for Technology Assessment, is contesting the legality of this patent. We assert that animals are not patentable subjects, as they are complex life forms with sentience and self-awareness, as opposed to toasters and other 'machines,' 'manufactures,' or 'compositions of matter.' A rabbit with damaged eyes is still a rabbit. Moreover, as a review of the literature reveals, the methods used to damage the rabbits' corneas fail the 'novelty' and 'nonobvious' requirements of patent law. We are thus asking the USPTO to reexamine and rescind the rabbit patent, and to cease to grant animal patents at all.