by Jake Meyer

We've all talked to animals before, but never have the animals talked back.  Recent research makes the possibility of a day when the family dog calls your name, and tells you to sit and shake hands a little more probable.  Researchers at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany have placed a human language gene in a strain of mice.

Although there are undoubtedly numerous genes that enable human speech, the replacement of the mice's FOXP2 gene with a human version of the gene had some surprising effects.  The mice with the human FOXP2 gene grew nerve cells with a more complex structure in the basal ganglia–a region of the brain used in language in humans.  The mice also had a new "voice."  When baby mice are separated from their mothers they make ultrasonic whistles.  But in the mice with the human gene, the whistle was a lower pitch.

The possibility of talking animals raises some interesting questions from a practical standpoint, such as: do you buy the dog more expensive food when he complains about the bland dry dog food?  Or how do you fairly mediate an argument between the hamster and your cat without alienating either of your pets?  And animals genetically engineered to speak also raise some interesting legal questions, particularly with respect to patent law.

The United States Patent and Trademark Office (USPTO) has granted patents on transgenic animals in the past (animals with a foreign gene implanted in their genome).  For example, U.S. Patent No. 4,736,866 is a patent on the "oncomouse," which is a mouse implanted with a gene that increases the probability of the mouse developing malignant tumors.  A search of the USPTO's patent and patent application databases did not find a patent or patent application of a transgenic mouse with a human FOXP2 gene (its possible an application has been filed but has not been published yet), but based on the oncomouse patent, its likely the USPTO would grant a patent on a transgenic mouse with the FOXP2 gene.  However, as more language genes are discovered and the possibility of an animal genetically engineered to speak grows nearer, its questionable whether such an animal would be patentable.

The U.S. Congress has not expressly prohibited humans from being patented, but has denied USPTO the use of funds for issuing patents claiming a "human organism."  PL 108-199, 2004 HR 2673.  However, the U.S. Congress has not defined what is a human organism.  Rachel E. Fishman has suggested that one factor in determining humanity is the "ability to formulate speech and communicate."  "Patenting Human Beings: Do Sub-Human Beings Deserve Constitutional Protection," 15 American Journal of Law & Medicine 461, 480 (1989).  Upon hearing an animal speak for the first time we may come to realize that speech is tantamount to being human.  We may empathize more with animals and decide that granting property rights over an animal that can communicate is immoral.  Further, the creation of speaking animals would likely involve the implantation of many human genes, which raises the question of how many genes must be replaced by human genes before an animal is considered human?

While animals genetically engineered to speak may never come to be, it does give us a chance to ask questions about what is patentable, what it is to be human, and what it would be like to talk to animals.  And in the interest of future employment opportunities I would like to say that I would vigorously defend the first amendment rights of mice and the rest of the animal kingdom.