Patently Offensive: Human Beings Are Not Property

Bioethics   Bill Saunders   Jun 17, 2011   |   7:43PM    Washington, DC

The House of Representatives is currently considering a controversial bill that would significantly change the U.S. patent system.

Patents are government-issued property rights that entitle inventors “to exclude others from making, using, offering for sale, or selling” their inventions. Whatever other merits or defects the new bill may have, the America Invents Act (H.R. 1249)[1] raises a serious pro-life concern. If it is passed, an existing policy restriction against the patenting of human organisms will disappear. Fortunately, an amendment to restore this ban and establish it as permanent law has been introduced.

One of the changes that would be made under pending H.R. 1249 involves the funding mechanism for the U.S. Patent and Trademark Office (USPTO), an agency of the Commerce Department. Instead of continuing to receive funds through the Commerce, Justice, and Science (CJS) Appropriations bill, the USPTO would fund the issuance of patents through user fees. Consequently, the funds collected through user fees would not be subject to a pro-life rider that has accompanied CJS appropriations every year since 2004. This rider, the “Weldon Amendment”, prohibits CJS funds from being used to issue patents directed to or encompassing a human organism.

The Weldon Amendment to the CJS Appropriations bill was first adopted in 2003 in response to growing concern that bio-tech researchers might seek patents on human beings, including human embryos. The Weldon Amendment reflects longstanding USPTO policies stating that human beings are not patentable subject matter. As a rider to annual appropriations bills, it must be passed annually to remain in effect.

A manager’s amendment to H.R. 1249 would codify Weldon Amendment language, making the prohibition against patenting human organisms at any stage of development a permanent law. Under the Amendment, the term “human organisms” includes human embryos, human fetuses, human-animal chimeras, “she-male” human embryos, and human embryos created with genetic material from more than one embryo. The term does not include human stem cells (adult and embryonic), non-human organisms, and does not prevent patents on human cells (including stem cells), human genes, or the processes of creating human embryos.

If the Weldon Amendment is codified under the America Invents Act, it will be the first pro-life rider to become permanent law this Congressional session. In this important area of the property rights of new inventions and their commercial potential, this would mark a significant pro-life victory.  And most importantly, codification of the Weldon Amendment would affirm the fact that human beings are not commodities to be bought and sold. Their inherent worth is priceless.

[1] HR 1249 is available at https://www.govtrack.us/congress/bill.xpd?bill=h112-1249. The Senate passed it version, the Patent Reform Act, on March 8, 2011. S. 23 is available at https://www.govtrack.us/congress/bill.xpd?bill=s112-23.