Biotechnology critics Jeremy Rifkin and Stewart New-man filed for a patent in 1997 for a method of combin-ing various types of embryo cells to produce chimeras,creatures that would be part human, part animal.Rifkin and Newman had no intention of becoming bio-medical entrepreneurs. Rather they wished to take ad-vantage of the essential nature of patent law to presstheir case against what they consider an objectionable

form of bioengineering. A patent permitssomeone to exclude others from making,using or selling an invention. If their ap-plication were granted, Rifkin and New-man could use their patent rights to be-come private regulators of chimera tech-nology, which could be of interest toresearchers engaged in creating replace-ment organs for human transplants. Thetwo men would, in effect, have the pow-er to ban chimeras for the term of thepatent, the better part of 20 years.

The Rifkin-Newman application hasbeen rejected several times already by the U.S. Patentand Trademark Office, although an altered applicationhas been resubmitted and is still pending. GeorgetownUniversity law professor John R. Thomas sees the caseas a demonstration of how the patent system is beingcommandeered by private individuals who then go onto make their own laws, free from the traditional safe-guards that prevent the government from abusing itspower. This trend emerges from the willingness of theU.S. patent office to approve what Thomas calls “post-industrial” patents that cover everything from methodsof doing business to human behaviors.

A political party might claim that a soft-money cam-paign technique infringes its patent, or a human-rightsorganization could prohibit use of its patent on a racial-profiling process. The possibility of an antiabortiongroup obtaining a patent and using it to restrict accessto, say, an abortion-inducing drug is a real one, Thomas

notes. Patents can even hijack federal tax law for privateends. Signature Financial Group in Boston received apatent on a computerized method that allows certainpartnerships to allocate profits, losses and expenses toindividual mutual funds invested in such partnerships ona daily basis. By making allocations each day, the part-nerships can obtain favorable tax treatment. Some ofthe language in the patent, Thomas says, closely paral-lels the tax code—what’s new is merely that the processis carried out by a computer. “Congress presumably in-tends its laws to apply to all citizens,” Thomas remarks.“Allowing one private entity to regulate access to a taxbreak is strikingly poor intellectual-property policy.”

Using the patent system as a private regulatory ve-hicle circumvents the checks and balances to which gov-ernment-made law is subjected. Constitutional guaran-tees of individual rights can be invoked only against thegovernment, not against a plaintiff suing for patent in-fringement. Thomas gives the example of patents thathave been granted that regulate the content of speech,including ones for making sales pitches or delivering ad-vertising over networks. Government control of ex-pression is strictly circumscribed. “Yet all indicationsfrom the courts are that privately held patents offer theirowners the ability to suppress or punish speech withoutreference to these limitations,” Thomas wrote last yearin the Houston Law Review.

He suggests that a set of little-known SupremeCourt decisions—which constitute what is called thenondelegation doctrine—might be invoked by federalcourts to curb unwarranted attempts at private law-making. The Supreme Court decided in a number ofcases before World War II that the government shouldnot confer its lawmaking authority on private individ-uals or organizations. The courts’ selective use of thenondelegation doctrine, Thomas contends, could pro-vide a “backdoor to the Bill of Rights” if the ambitionsof patent holders overstep the bounds that were in-tended by the framers of the Constitution.

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Staking Claims

Make Your Own RulesPatents let private parties take the law into their own hands By GARY STIX

COPYRIGHT 2003 SCIENTIFIC AMERICAN, INC.