Wilbur's Conundrum: Property in the DNA of Selectively Bred Animals*

Advances in technology are changing what it means to own. Consider the science of genetic cloning, which is proceeding at a rapid pace. Only ten years ago, scientists in Scotland announced the birth of Dolly, a sheep cloned from the mammary glands of an adult ewe.1 By 2003 scientists in the United States and Europe had successfully created healthy clones of mules and horses.2 The successful cloning of a human may not be far off.3 As cloning technology progresses, it will have increasing consequences for the enjoyment of traditional legal rights. Courts and legislatures will have to address these consequences as they arise. Legal academics are uniquely placed, however, to anticipate areas in which the new science will conflict with existing law and to suggest ways in which the law might change to adapt to or reflect the new reality. This Note is one such effort. In four parts, it discusses the legal impact of recent advances in the science of "somatic cell nuclear transfer" (SCNT) cloning of selectively bred animals.4 Focusing on selectively bred horses, I suggest that advances in cloning technology threaten to undermine traditional property rights in a manner that common law and statutory remedies are unable to address. I conclude that the law should be adapted-either by legislatures or by courts-to recognize a property right in the DNA of selectively bred animals. Part I provides the scientific and factual context for my legal discussion, suggesting a hypothetical use of SCNT cloning that would undermine traditional notions of ownership, and then discussing the economic and scientific circumstances that may turn the hypothetical into reality. Subpart I(A) discusses the horse industry in America. The size of the industry in economic terms is staggering, and the value of top Thoroughbred horses makes the otherwise costly procedure of cloning a commercially viable investment for owners of elite, selectively bred animals. Subpart I(B) discusses the science of somatic cell nuclear transfer. Subpart I(C) notes the recent successful application of this technology in the field of horse breeding. Part II discusses certain traditional common law remedies that might be available to an owner who finds himself the victim of an unauthorized use of animal DNA. Subpart II(A) considers a potential action for conversion and finds it wanting. Subpart H(B) considers a potential action for trespass to chattel, finding it more hopeful but still insufficient to protect the interests of the aggrieved owner. Subpart II(C) considers the law of lost and abandoned property as a means of explaining the manner in which an owner might inadvertently be deprived of DNA, and the manner in which a third party might come to acquire the DNA of a selectively bred horse without exposing himself to any civil liability.5 Part III discusses the possibility of achieving patent protection for the DNA of a selectively bred animal. Addressing the requirements of subject matter, utility, novelty, and nonobviousness set out in the Patent Act, I conclude that patent protection will probably not be available to breeders of selectively bred animals.6 Part IV considers two possible methods of recognizing a right in the DNA of selectively bred animals. Subpart IV(A) reviews various objections to the recognition of rights in the DNA of animals. Subpart IV(B) considers a statutory model based on the Plant Variety Protection Act (PVPA),7 which recognizes a right akin to personal property in selectively bred plants registered with a national governmental authority. Subpart IV(C) considers a judicial model based on simple recognition of a right to property in the DNA of a selectively bred animal sufficient to sustain an action in conversion or trespass to chattel. The Note concludes with a recommendation for further inquiry into other areas in which cloning may present new challenges to traditional legal protection of basic property rights. …