Feb 9, 2022 7:00 AM

You're (Maybe) Gonna Need a Patent for That Woolly Mammoth

Scientists are racing to bring extinct species back from the dead. But does a resurrected mammoth belong to nature, or us?

The mouse didn't look like much. It had the same red beady eyes and white fur as any other laboratory mouse. Sure, its DNA had been tweaked to make it ideal for testing anti-cancer drugs, but that wasn’t so unusual either. The year was 1988, and it had been more than a decade since researchers at the Salk Institute showed it was possible to create genetically modified mice by inserting viral DNA into mouse embryos. Plenty of other genetically modified animals would be created in the following decades, but none of them would prove as important—or controversial—as OncoMouse.

What made OncoMouse remarkable was its paperwork. On April 12, 1988, the US Patent and Trademark Office issued a patent for it—the first for any living animal. The patent turned a mouse—which had been modified to be more susceptible to cancer—into a legally protected invention, with a patent that prevented anyone else from making or selling mice with the same genetic tweaks. (Or, at least for the 20 or so years that most patents last.) The patent was granted to Harvard University, which passed on the exclusive license to the main funder of its research: DuPont. Soon, the chemical giant was printing T-shirts with an OncoMouse silhouette emblazoned across the chest, and selling researchers the new invention for $50 a mouse.

That patent changed science forever. After OncoMouse, scientists rushed to invent—and patent—other animals that would be useful in their research. Mostly this meant mice, but occasionally other species were patented too, as in the case of rabbits engineered to be susceptible to HIV infection. OncoMouse was used in countless breast cancer studies and helped researchers understand the genetics behind human susceptibility to cancer.

But OncoMouse also raised an awkward question: Where do we draw the line between what belongs to humans and what belongs to nature? And if we could patent only animals that currently exist, what’s to stop us from patenting species that died out long ago? It’s a moral conundrum right out of Jurassic Park, but one that lawyers and scientists are now grappling with for real. Colossal—a startup cofounded by the Harvard geneticist George Church—wants to resurrect a woolly mammoth within the next six years. Its CEO, Ben Lamm, is confident that a mammoth is patentable. But bringing back a species that last stomped the Earth 4,000 years ago raises all kinds of questions that scientists warn we’re not fully prepared for. Can someone really patent a mammoth? And if they can, should they?

Time to contend with these questions is running out. “There is an awful lot of stuff going on at the moment,” says Mike Bruford, a conservation biologist at Cardiff University who helped draft the International Union for Conservation of Nature’s guidelines around de-extinction. Bruford is worried that most de-extinction work is being done by private companies and that scientists can’t be sure of their intentions. “The academic community and the conservation community are, generally speaking, peripheral in this,” he says. When it comes to deciding where—or if—de-extinct animals will be released into the wild, the legal status of those animals will matter an awful lot.

The science of de-extinction—bringing long-extinct species back into existence—is edging closer to possibility. In January 2000, the last living bucardo was killed by a fallen tree. The species of wild goat native to northern Spain had been pushed to the brink of extinction by hunting and was finally done in by a gust of wind.

It was an unceremonious end to a species, but the year before the last bucardo died, scientists in Spain had taken a small chunk of tissue from its ear in the hope that they could eventually use the DNA within to bring the species back to life. That’s exactly what they did in 2003, taking the bucardo’s DNA and putting it inside eggs that were then implanted inside other goat species, close living relatives. Of the 208 embryos, only one made it to term. For a brief moment, the bucardo was back. But then the kid started gasping for breath. Minutes later it was dead—an autopsy later revealed a lung defect common in cloned animals. The bucardo had gone from extinct to extremely endangered and then back to extinct again in a few short minutes.

Other attempts at cloning endangered species have been more successful. In 2020, scientists cloned a black-footed ferret for the first time. That clone—called Elizabeth Ann—is the genetic copy of a wild female called Willa who died in the 1980s. Once widespread throughout the Great Plains in the US, the black-footed ferret was thought to be extinct until a ranch dog helped scientists discover an 18-strong colony in Wyoming in 1981. Although there are now approximately 370 black-footed ferrets in the wild, the species is still extremely endangered, which is why conservation specialists are carefully searching for a mate for Elizabeth Ann.

It's extremely unlikely we’ll ever see a patent for Elizabeth Ann or other animals resurrected through cloning. Most legal systems make it impossible to patent things that occur in nature. You can’t patent an animal or plant simply because you found it first; you need to prove that you’ve invented something. Elizabeth Ann is—legally speaking—an obvious product of nature. Her DNA is a near-exact copy of Willa’s—she’s a duplication, not an invention. The scientists who cloned Dolly the sheep in 1996 hoped to secure a patent, but they were turned down for exactly this reason. “Dolly's genetic identity to her donor parent renders her unpatentable,” wrote a US Court of Appeals judge in 2013, concluding a long legal battle.

But cloning isn’t the only possible path to de-extinction. In September 2021, the startup Colossal launched with the announcement that it had raised $15 million to bring back the woolly mammoth. Although Colossal positions itself as a leader in de-extinction—its website has a whole page dedicated to the term—the startup isn’t exactly resurrecting woolly mammoths. There isn’t a surviving mammoth genome that’s complete enough to implant directly into an egg cell, so cloning is out of the question. What Colossal’s scientists want to do instead is use their knowledge of the mammoth genome to edit the DNA of an Asian elephant so that it more closely resembles that of their ancient, hairier, cousins.

“We’re not de-extincting the mammoth. We’re de-extincting genes to essentially make Asian elephants cold-tolerant,” says Colossal CEO Ben Lamm. The end result would be an elephant-mammoth hybrid that Lamm describes as a “functional mammoth” or an “Arctic elephant.” Eventually Lamm wants to release the Arctic elephants into the Siberian tundra, where he hopes they will help recreate the ancient steppe ecosystem, restore grasslands, and help keep carbon locked in the permafrost. (Whether this would actually happen or not is up for debate.)

Colossal has already sized up a spot for its functional mammoths. Pleistocene Park in the northeastern corner of Russia is a nature reserve maintained by the Russian ecologist Sergey Zimonv and his son, Nikita. The 50-square-mile stretch of tundra is being repopulated with yaks, horses, and bison that the Zimovs hope will uproot and trample away shrubs and trees, making way for the grasslands that covered the area during the Pleistocene Epoch, between 2.6 million and 11,700 years ago. A woolly mammoth—or at least an Asian elephant playing the role—would be the park’s crowning glory.

Despite the nod to Jurassic Park, Lamm says that his goal with Colossal isn’t to directly monetize the mammoths themselves, but to patent and license other technology the company develops along the way. For example, they might need to create giant artificial wombs to grow the mammoth-elephant hybrids, and that technology might help extremely premature human babies survive outside the body. Other techniques they develop for gene editing or storing animal DNA might be helpful for scientific research or conservation efforts. “I think you may get more value out of the technology than the resulting genomes,” Lamm says, although he’s not “closing the door” to patenting whole animals one day.

A project at the nonprofit Revive & Restore, which helped clone the black-footed ferret, is using a similar gene-editing approach to Colossal, but this time to bring back the extinct passenger pigeon. In both of these cases, the aim isn’t to perfectly recreate the extinct species, but to create a hybrid animal that is close enough to the extinct one that it fits into the same ecological niche as its long-dead predecessor. Passenger pigeons may have once been the most numerous birds on the planet, says Ben Novak, a scientist who leads the passenger pigeon project at Revive & Restore. Before they went extinct in 1914, the birds lived in dense flocks across the US and Canada, and their diet of seeds, fruit, and nuts helped build the forests of the northeastern US. Reintroducing the species—or one like it—to the area might help protect these fragile forest ecosystems.

A hybrid approach to de-extinction might be inventive enough to qualify for patent protection. Since mammoth-elephants have never existed in nature, they might not run afoul of the rules that exclude clones from patenting. One recent paper in the Journal of Law and the Biosciences noted that some legal experts are confident that de-extinct species can be patented, at least in the US. (In the European Union, patents can be denied on moral grounds, much to the chagrin of the scientists behind a balding mouse created to test hair loss treatments.) The authors point to a few reasons why companies might want to patent de-extinct animals: to entice investors with the promise of future licensing revenue, to stop other companies from working on the same animals, and to make sure they have exclusive rights to display the animal in a zoo or park.

But Andrew Torrance, a professor of law at the University of Kansas, isn’t so sure that US law will allow it. He points to a legal battle over some patents that would have given a genetic testing firm the exclusive rights to isolate and sequence the human BRCA1 and BRCA2 genes. Mutations in these genes can dramatically increase the risk of breast and ovarian cancer. In 2013, the US Supreme Court ruled that since these two genes occur naturally, they aren’t eligible for patenting. A court may decide that editing an Asian elephant to be more like a mammoth is also recreating something that existed in nature—albeit something that died out thousands of years ago. “Anything you can show was found, or is found in a genome, that will not be patentable in the US and largely unpatentable in other countries as well,” says Torrance, who in 2015 went to Newcastle, England to join a conference discussing the possibility of bringing back the flightless, penguin-like Great Auk, which has been extinct since 1844.

And while we still don’t know if de-extinction will be possible, if it works, it may be profitable. In 2013, the same year that the Supreme Court ruled on the breast cancer genes, three lawyers wrote a lengthy paper arguing that the patent question would have to be addressed sooner or later. De-extinction companies might want exclusive rights to showcase the animals in a purpose-built park, à la Jurassic Park. A company might resurrect the Cuban Macaw or Carolina Parakeet and hawk the birds to parrot fanciers eager to pay a premium for rare birds. Where there is money to be made, the urge to patent is unlikely to be far away. Eventually, Torrance says, the law will have to adapt to these new situations—however far-fetched they seem to us now.

There is, of course, a bigger question: Not just if we can patent revived species, but whether we should. That could end up having a lot to do with what—or whom—de-extinction is for. De-extinction could be seen as a recompense for the hundreds of species humans have partly or wholly driven to extinction. Novak thinks that any species wiped out by humans should be seen as a legitimate candidate for de-extinction—as long as there is still a place left where they can live naturally. For a conservationist like Bruford, the important question is really whether there is a niche in an ecosystem that needs to be filled and whether a resurrected species is the right option there.

Sometimes that niche may have disappeared altogether. It has been thousands of years since woolly mammoths roamed in Siberia, after all. And rather than bringing back extinct species, another way conservationists could fill an ecosystem gap is by introducing a similar species from a different area. For example, Bruford is involved in a project bringing the Aldabra giant tortoise to an island near Mauritius to fill in the gap left behind by the extinct Mauritian tortoise. Others have proposed introducing heat-resistant species of coral to areas endangered by climate change.

If we did bring extinct animals back into modern ecosystems, we may end up running into other serious problems, says Bruford. Mammoths are huge wide-ranging animals that might be hard to contain, and we don’t know if the diseases that may have kept mammoth populations in check still exist today. “It’s not like Jurassic Park, when it’s all on some little fictional island in the middle of the Caribbean. These are big countries with big borders which are porous,” he says.

There’s also the not-insignificant question of how de-extinct animals would be classified. Would a gene-edited Asian elephant be considered a mammoth, an elephant, or something in-between? Would it go immediately on the endangered species list? Or—because it had never existed before—would it technically be an invasive species and prohibited from most areas?

For Novak, although he supports de-extinction, he doesn’t think that the industry should exist for profit, or that a resurrected species should ever be patented. “We are a byproduct of the incredible story of this planet, and it’s an incredible amount of arrogance to believe that we could have some kind of legal right over an entire population of organisms,” he says.

Most of his scientific publications are available online for people to access for free, and those that aren’t he gives away to anyone who asks. If he manages to resurrect the passenger pigeons, Novak says he’ll never sell one. In fact, Revive & Restore had run a mammoth de-extinction project for nine years without attracting enough funding to really get the project underway, Novak says. The nonprofit originally intended to work toward repopulating the tundra in Eurasia and North America with elephant-mammoth hybrids, and its webpage says it brokered the introduction between geneticist George Church and Sergey Zimonv before eventually handing the project over to Colossal.

The revamped, now for-profit project quickly attracted funding from Breyer Capital, Tony Robbins, the Winklevoss brothers, and filmmaker Thomas Tull, whose production firm, incidentally, was behind Jurassic World. “The fact of the matter is that [de-extinction] doesn't attract money. It only attracted money when the idea of profit was brought to the table,” Novak says.

But without private investment, de-extinction might never get off the ground, argues Lamm. “I mean, it’s expensive, from a process perspective,” he says. Colossal will have to raise even more money to keep the project going, and Lamm says that the technologies the startup develops along the way will hopefully benefit health care, research, and conservation. “The de-extinction technology stack can not only be leveraged for species like mammoths, but also for small populations like the northern white rhinos and others,” he says.

Patents—or at least profit—might just be the price conservationists have to pay. And although he vehemently rejects the for-profit de-extinction model, even Novak has an idea he wants to patent. It’s for a genetically modified pigeon that would be much easier to gene-edit than existing birds, and he thinks it could save researchers a lot of time. If his idea works, and he’s granted a patent, he’d like to channel the funds from his invention back into his nonprofit de-extinction work. “We have to make money. The whole world revolves around money,” he says. “So I’d like to try and get a little piece of my pie too.”