On April 10 of last year, the European Patent Office quietly awarded a patent to Michigan State University (MSU) for “euthanasia solutions which use the anesthetic gammahydroxy-butramide (embutramide) as a basis for formulating the composition.” On the surface, the event was not out of the ordinary. In the abstract of the public document, the new compound appeared to be for application among the “lower mammals,” meaning for veterinary needs. In this regard, the new drug was an improvement. Unlike the existing product, known as T-61, the MSU compound did not contain a barbiturate, making it easier to store and transport. It also avoided common side effects, such as “a stiffening of the forelimbs” and an overstimulation of the brain.
So the matter might have lain, had not a German patent attorney affiliated with the conservative group Mut Zur Ethik (“Courage to Take a Moral Stance”) come across the provisional award of patent during a routine review of public documents. He secured background materials, including a March 1, 1994, response from the Examining Division of the European Patent Office. In raising challenges to MSU’s initial application, it included this passage: “The Examining Division notices that the subject matter of the claims is not limited to the provision of euthanasia in lower mammals. The attention of the Applicant is drawn to the fact that humans are a mammalian species, and that as a result of the wording of the claims the Applicant is seeking protection for an agent for committing euthanasia on humans as well.” And noted: “Active euthanasia is a felony under the law of many countries, and the provision of an agent for providing euthanasia in humans probably will have a similar position under those laws.” The European examiners asked the American university to give “an explicit statement” on this, “or to limit the claims of the present application.”
Given this opportunity, MSU responded, through a European law firm, on July 1, 1994; “The compositions of the present invention are intended for use in lower animals. There is no intent to violate the laws of any country in reference to use in humans. Nevertheless, if it should ever become legal to use the compositions in human beings, the patent claims should encompass the use of the compositions of the present invention for this purpose.” (Emphasis added.)
MSU (whose motto is “Institutional Diversity: Excellence in Action”) argued that existing patent guidelines allowed that “a product could still be manufactured under a European patent for export to states in which its use is not prohibited.” Elsewhere in the document, the university challenged excessive concern over the “agonal breathing” to be found in some research cases. MSU reasoned that “it is probably a last-ditch or final reflex response in lower and higher animals, including humans, to breathe following very low oxygen levels in respiratory center of brain and thorax.”
In addition, the patent cited 12 relevant journal references, four of which directly focused on human use. Their titles included “Suicide by ingestion of T-61,” “Veterinary euthanasia drugs as suicide agents,” and “Euthanasia and the right to die: Holland and the United States face the dilemma.” It seems that human application was clearly on the minds of whoever prepared these documents.
Shortly before giving a lecture in Zurich, Switzerland, last summer, I met the patent attorney mentioned above. He passed these documents along to me, and asked whether I knew anything about this case. Unaware of it, I promised to inquire.
On the Friday before the Labor Day weekend, I reached by phone the director of MSU’s “intellectual property” office. Upon mentioning the subject of my query, his pleasantly officious voice grew uncertain. “Oh, no,” he whispered. He went on to report that one of the inventors of the compound had discussed early on the drug’s marketing potential if used on humans, but the idea had been squelched. He said that the legal work for the European patent had been guided by the large multinational corporation that would produce and market the compound in Europe, but he was unable to release its name. After promising to call back with more information, he sighed and said, “You know, you’ve ruined my weekend.”
About four hours later, the same official called back. A conversation with the university’s attorney had restored his composure. He now reported that the licensing agreement with the unnamed company only allowed animal use, and that the language in the European patent claim was simply lawyer talk, designed to secure the best and broadest protection of patent rights for the client. It would be “misleading,” he said, to say that the patent claim covered human use. In a subsequent conversation, I asked him if MSU would be willing to issue a statement fully renouncing human use. He replied that he did not have that authority, but would ask others who did.
Two weeks passed, and I heard no more. On September 22 the Detroit News ran my editorial, “MSU Gets into the Euthanasia Business.”
The mysterious European multinational that had funded the relevant MSU research has since come out of the closet. It turned out to be Hoechst-Roussel, the $100-billion-a-year corporation in the headlines most recently for the termination of its association with RU486, the so-called abortion pill. Curiously, though, the company vehemently denied any role in seeking protection for human application of the MSU euthanasia drug.
Indeed, when Mut Zur Ethik filed a challenge to MSU’s European patent award in late 1996, Hoechst-Roussel followed suit, independently arguing that Article 53 of the European patent convention—which specifies that patents shall not be granted for “inventions the publication or exploitation of which would be contrary to ‘ordre public’ or morality”—should come into play. Both Mut Zur Ethik and Hoechst-Roussel cited the MSU patent’s coverage of potential human use as the basis for their objection.
In January, I received a letter from MSU President Peter McPherson, stating:
MSU will never seek to benefit financially from use of such a drug for humans, and neither [the inventor] nor MSU will authorize use of the drug composition for humans. In addition, we are currently working with the company which licensed the composition to further define its field of use to include only specific lower mammals such as cats, dogs, etc.
Whereas Hoechst-Roussel had willingly sacrificed commercial interests to set matters right, the MSU statement fell short of being legally binding, actually leaving all options open for the future.
In fact, this whole story highlights American universities today. As Rockford Institute founder John Howard has long warned, the triumph of the research function over the traditional teaching function at our universities would eventually have perverse results. Add to this the quest for profits through union with corporate largesse, and our universities have entered an ethical black hole, no longer able even to recognize a moral question.
As the concerned German attorney asked me in Zurich, “Do the people of Michigan know about this patent?” I said it was unlikely, adding that such matters, being the province of bureaucracies, were usually concealed from public view.
The MSU story also brings to mind the “T4” euthanasia program, secretly implemented with government blessing by German doctors in 1939 (this was the one extermination order that Adolf Hitler actually signed, a mistake he did not repeat). It began with the grant of a “mercy death” to 5,000 mentally and physically handicapped children (“making angels,” the physicians and nurses called it) and later counted 70,000 adult victims as well. The popular German media abetted Hitler’s plans. A 1940 film, Ich Klage An (“I accuse”), concerned a pioneering professor of pathology, Thomas Heyt, whose rich and beautiful wife Hanna develops multiple sclerosis. After Heyt’s frantic research efforts to develop a cure fail, he gives his wife a euthanasia drug. To piano accompaniment, the couple says farewell:
Hanna: . . . I wish that was the end, Thomas.
Heyt: It is the end, Hanna.
Hanna: How I love you Thomas . . . [He weeps]
Hanna: I wish I could give you my hand, Thomas.
This episode in culturally-conditioned, state-sanctioned murder only came to an end a year later, when mounting suspicions among the citizenry swelled into a public protest by Catholic Bishop Clemens August von Galen.
Michigan State University, of course, is far removed from such organized destruction of human life. The school may just want to protect its rights, lest they be claimed some day by another state-capitalist entity. But I wonder, with Bill Clinton in a remorseful mood, if now isn’t the time that we apologize to the Germans for those misguided “doctor” trials at Nuremberg.