Goldfish – The Ethics of Biotechnology
The article regarding the ethics of the patentability of animals appearing in the December 1994 issue of “The
Law Works”, entitled “Patenting Life-Transgenic Animals”, requires some commentary.
The author of that article has written a most useful article but has not included some important basic material in
this field. First the article does not include reference to a second Leder et
al. patent (with a different co-inventor,) USPN 5,175,383, also to a mouse, but exhibiting prostate hyperplastia or hypertrophy;
nor to a “Yale Mouse” USPN 5,221,778. Also of interest is USPN 5,183,950. Further, the article does not mention H1065, a Statutory Invention Registration directed
to a chicken resistant to avian leucosis virus, to which we will return at the conclusion of this essay.
Also omitted is reference to “Questions and Reform Jewish Answers”, which tackles the basic ethical question presented by the Harvard, or Oncomouse. In the concluding paragraphs, the author of the December 1994 article discusses testimony
from S1792 (100th Congress) and relates the position of some mainstream Christian organizations.
In the 100th Congress, HR 4970, “The Transgenic Animal Patent Reform Act” was introduced and
assigned to the Judiciary Committee. The Committee on the Judiciary recommended
the bill as amended to pass. In addition to several distinguished Christian theologians,
testimony included that of Rabbi Michael Berenbaum, then Scholar-In-Residence, Religious Action Center
for Reform Judaism. He classified the questions concerning the issuance of animal
patents to be ethical rather than technical. He posed several questions that
he believes must be answered in order to understand what must be done regarding this issue: what constitutes life and what
is merely an inert manufactured commodity; what are the limits and frontiers of scientific knowledge; should there be constraints
on scientific experimentation and/or industrial exploitation of these experiments? He
also questioned “who shall regulate, who shall decide?”
Rabbi Berenbaum asserted that animal patents raise important concerns and therefore decisions in this area should not
be made by Patent Office employees, but should be the responsibility of our elected officials.
He supported the call for a two year moratorium on the issuance of animal patents in order to allow the religious community
time to study the issues and their implications. He expressed concern that genetically
engineered animals “may transgress a boundary of nature” and that if we proceed too quickly “we may lose
our reverence for life and diminish our own humanity.” Also, a discussion
of divergent Jewish views is reported by Jon Cohen in the December, 1993 Bulletin of the American Intellectual Law Property
Association, in a book review at page 145.
It is indeed regrettable that the views of the article were published uninformed by the Resonsa of Walter Jacob of
the Central Conference of American Rabbis, published in 1992, and the choice of the words “opponents of biotechnology.” Anyone with doubts on this subject may consult “Patents on Microorganism.”,.
In “Questions and Reform Jewish Answers,” Dr. Walter Jacob, Rabbi, Rodeph
Shalom Temple, Pittsburgh,
PA and Chairman of the Responsa Committee, Central Conference of American Rabbis, answered
the question: May genetically engineered changes in a mouse designed for medical experiments be patented? The members of the Responsa Committee who discussed this question felt a high degree of discomfort with
patenting changes in a living creature. According to the Reform Rabbis: “The
animal itself should not be patented, …Social policy has led to plant patents.
This has protected the livelihood of individuald and made a more abundant human existence possible. However, patenting an animal leads us in a direction not conducive to respect for life. The Holocaust has made us aware of the dangers of dehumanization.
The process, i.e., the genetic change may be patented, but the mouse itself should not be patented.”
This represents the thinking of the Responsa Committee of the CCAR. The responsa method is a millennia-old
Jewish tradition of answering important contemporary questions which are not specifically treated by the Torah or its interpretative
texts. The methodoly employed attempts to determine the principles underlying
the source material and apply the principles to the issue presented. As applied
to present day questions within the Reform Jewish movement, typically a congregant of a synagogue whose rabbi is a member
of the Central Conference of American Rabbis is referred to the Responsa Committee with the question which the member rabbi
feels unqualified or uneasy in answering. The question is then posed, perhaps
in a more suitable reformulation, to the Responsa Committee by the Chairman, who then gathers the answers of the Committee
members ans synthesizes a draft of the Responsum which is circulated to the Committee members.
Ultimately, a final draft is reached, expressing the consensus of the Committee.
Additional details of the Resonsa methodology may be found in the monograph, “patents on Animals.”
At this point in my little letter, I would like to introduce another kosher animal into the discussion, a kosher goldfish.
Jewish law relative to goldfish is well known. The goldfish parable is
usually applied to Jesish self-caution in combating anti-semitism. Since urban
Jews were likely to keep goldfish as pets, and the well known proclivity of these animals to almost certain and swift death,
Uncle Moishe’s magic cure of adding a pinch of kosher salt to the horizontal-goldfish’s bowl was met with wonder
and awe upon seeing the ailing goldfish revive. Later, adding a second pinch
to a similarly orthogonal-goldfish position position was met with considerable less awe, until with the third repetition the
goldfish inevitably dies, eliciting Uncle Moishe’s pathology report, “Too much salt!”
The same may be said with the Holocaust. So at the risk of the fear that
too much discussion much discussion will enure the senses and souls of the general public to the actuality of the horror with
which we Jews are so intimately acquainted, I would submit some brief citations to demonstrate the depth of feeling caused
by the invocation of the Holocaust.
It is with this caveat that I lauch on the next part of the discussion in which I find it necessary to provide a diverging
viewpoint from that of my learned and distinguished colleague.
Aside from the ad homonym logical fallacy, inter alia, we have concluded that obtaing patents on animals or “non-human
transgenic animals” may be unethical and lead to abuses of our stewardship. Further,
under the Doctrine of the Nuremburg Trials we have a positive duty to act to prevent a reoccurrence of the nightmare of the
We are convinced that a legislative solution is necessary to at least provide a framework for the ethically balanced,
commercial utilization of these new scientific advances. Accordingly we support
the efforts of leaders such as Sen. Mark Hatfield and Rep. Benjamin Cardin in seeking a moratorium on animal patenting. We have suggested that these types of new entities be the subject of a Statutory Invention
Registration (SIR) only, a creature of the patent system which provides a shield, but not a sword for the
Alternatively, and clearly less palatably, a patent attorney may state: “Out of ethical considerations, the firm
does not accept cases requiring claims for transgenic animals.”
One more point before closing. Far from being settled, the questions posed
in ALDF v Quigg are far from settled. ALDF v Quigg was decided
solely on procedural grounds. The section 101 questions commentary therin constitute
mere dicta. The Supreme Court has never ruled on these issues. Even the Commissioner’s authorization recused the Patent Office from issuing claims directed to humans,
presumably on 13th or 14th Amendment grounds. The last
chapter in this story is far from being written.
Respectfully Submitted: Arthur P. Gershman, R.N. 27,035
 CCAR, New York, (1992). See R153 & R154, Pps 224-252.
 Id. Two
response treat this topic. R153 & R154 treat, respectively, patenting genetic
engineering, and Jewish
involvement in genetic engineering.
 “Patents on Microorganisms” by Gershman
et al., 21 Idea 1, (1980)
 Central Comference of American
 CAPAR, Mt. Vernon,
 “Night” by Elie Wiesel, B’nai
Brith (1984); “Children of the Holocaust” by Helen Epstein, Bantam Books, (1980); “Norwegian Concentration
Camp Survivors” edited by Axel Strom, Universitetsforlaget, Oslo, (1968); “Hasidic Tales of the Holocaust”
by Yaffa Eliach, Oxford University Press, New York, (1982).
 CAFC #90-1364, decided April 30, 1991 upholding the validity of USPN 4,736,866 to Leder et al.