A foundation at the University of Wisconsin holds a patent that covers both the method used to isolate human embryonic stem cells and the stem cells themselves. (It's U.S. Patent No. 6,200,806.) Can you patent life?
Yes. U.S. law states that patents may go to anyone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof," and the Supreme Court ruled in 1980 that a "manufacture" or a "composition of matter" can be a life form.
Before that ruling, the U.S. Patent Office assumed that living things could not be patented. Its rationale: Congress passed specific laws to allow plants to be patented, so specific laws must be required to patent other forms of life, too. But in a 5-4 ruling in Diamond vs. Chakrabarty, the Supreme Court reversed that stance. The court held that a man-made, genetically engineered, petroleum-eating bacterium was patentable. Naturally occurring phenomena and organisms cannot be patented, but the bacterium was a product of human ingenuity. The fact that it was alive wasn't relevant, because Congress never specifically prohibited the patenting of living creatures.
In 1988, eight years after the court's ruling, the U.S. Patent Office issued its first patent for an animal. Harvard researchers, funded by DuPont, patented the "oncomouse," a mouse genetically engineered to develop cancer. (It's U.S Patent No. 4,736,866. Designed to be a particularly sensitive barometer for cancer-causing pollutants, the oncomouse developed cancer too spontaneously to serve that purpose.) The oncomouse patent covered both the genetically engineered mice and their offspring. Since then, the patent office has continued to issue patents for animals, including some that contain human genes or organs. Patents have also been issued for human genes and cells.
OK, so the law permits you to patent human alterations of living creatures. What's to prevent Explainer from sawing off his editor's arm with a chain saw and then patenting the isolated arm and the process used to isolate it?
Patent law requires inventions to be man-made, novel, and non-obvious. Although the editor's sawed-off arm would be man-made, the process used to isolate it wouldn't be novel, and the method would be obvious to a person of ordinary skill in the field (ask any writer). The patent office decides whether inventions meet these three conditions, though its decisions can be appealed (up to the Supreme Court, as in the case of the petroleum-eating bacterium).
The Wisconsin stem cell patent hinges on the "man-made" requirement, which basically comes down to the difference between an invention and a discovery. Wisconsin researcher James Thomson was the first to isolate stem cells from human embryos, and the Wisconsin foundation argues that by doing so, Thomson invented the very idea of human embryonic stem cells. If Thomson hadn't invented the process used to extract stem cells from human embryos, and then figured out how to culture the cells so that they thrived and multiplied, stem cells wouldn't exist. At least that's the argument, and the U.S. Patent Office bought it.
There's one other legal wrinkle to patenting life. Two years ago, the patent office rejected a scientist's request to patent "chimeras" that would be part-monkey and part-human. (The scientist, who never carried out the procedure he proposed to patent, questioned the morality of patenting life forms and wanted Congress to reconsider the policy.) The basis for the rejection: The invention would be too human and would violate the 13th Amendment prohibition on slavery and involuntary servitude. But neither Congress nor the patent office has defined "human" or "how human" an invention must be to prevent it from being patented.
Once a patent is issued, it's presumed to be valid until challenged by someone who's been sued for patent infringement or threatened with a lawsuit. Until that happens, the legality of Wisconsin's patent won't be tested.
Explainer thanks this Fray thread for prompting the question.