43 Rutgers L. Rev. 417 (1990-1991)
The Cheshire Cat, the March Hare, and the Harvard Mouse: Animal Patents Open up a New, Genetically-Engineered Wonderland

handle is hein.journals/rutlr43 and id is 427 raw text is: NOTE
The Cheshire Cat, the March Hare, and the
Harvard Mouse: Animal Patents, Open Up a New,
Genetically-Engineered Wonderland
David Manspeizert
I. INTRODUCTION
On April 12, 1988, the United States Patent and Trademark
Office (PTO) issued the first patent for a Transgenic Non-
Human Mammal, the Harvard Mouse.' The Harvard Mouse is a
genetically-engineered mouse which is a more effective model for
studying how genes contribute to cancer, particularly breast can-
cer.''2 The granting of the patent to Harvard was the logical con-
t J.D. Candidate, 1991, Rutgers University School of Law-Newark.
1. U.S. Patent No. 4,736,866.
2. Schneider, Harvard Gets Mouse Patent, A World First, N.Y. Times, Apr. 13, 1988, at
Al, col. 5. Chemical giant E.I. du Pont de Nemours and Company owns the rights to
license the mutation technology, due to seven million dollars in grants given to the scien-
tists at Harvard in exchange for the right of first refusal to license the mutation technol-
ogy. Du Pont exercised this right and now owns the licensing rights to this technology. Of
Mice and Men: Harvard Patents A New Life Form, U.S. NEWS & WORLD REP., Apr. 25,
1988, at 49; Booth, Animals of Invention, 240 SCIENCE 718, 718 (1988). The patent is not
limited to mice carrying the MMTV-myc gene, but is written in broad language including
any non-human animal into which any oncogene or effective sequence thereof has been
introduced. Id.; U.S. Patent No. 4,736,866. See also Note, Of Transgenic Mice and Men,
16 W. ST. U. L. REV. 737, 744 (1989).
The European Patent Office provisionally rejected Harvard's application for a patent on
its mouse. The decision was based on the fact that the European Patent Convention of
1973 prohibits the patenting of transgenic animals per se. Dickson, Europe Tries to Un-
tangle Laws on Patenting Life, 243 SCIENCE 1002, 1003 (1989). For a good discussion of
European patent law as it relates to animal inventions, see Moufang, Patentability of Ge-
netic Inventions in Animals, 20 INT'L REV. INDUS. PROP. & COPYRIGHT L. 823 (1989). The
European Commission recently proposed that subject matter should not be considered un-
patentable per se for the sole reason that it is composed of living matter. Dickson, supra,
at 1002.
Chief Judge Howard Markey of the Court of Appeals for the Federal Circuit, which
hears all appeals of patent cases, said: It is somewhat ironic that the first animal patent
should involve a mouse. After all, the proverbial objective of the patent system has been to

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