Winners at the Animal Law Institute, with Professor Fran Ortiz

First place – Sarah L. Weinstein, South Texas College of Law, Animals and the Antiquities Act of 1906

Second place – Lisa Turner, Texas Wesleyan School of Law, Valuing Companion Animals in Tort: Why the Texas Supreme Court Should Revisit and Reform Its 1891 Holding in Heiligmann v. Rose to Allow Companion Animal Owners to Plead Sentimental Value Damages

Third place – Cathryn Copeland, SMU Dedman School of Law, More than the Sum of Their Parts: Why Animals Should Not Constitute Patentable Subject Matter

Honorable Mention – Melissa Ann Lesniak, St. Mary’s University School of Law, Comingling Canines and Other Unique Considerations of the Legal Rules of Professional Conduct in Cases Involving Animals

Yolanda Eisenstein is an attorney with an animal law practice in Dallas, Texas.  She is an adjunct professor in animal law at SMU Dedman School of Law.  She is vice chair of the American Bar Association TIPS Animal Law Committee and former chair of the State Bar of Texas Animal Law Section.  She serves on the advisory board of the Texas Humane Legislation Network, a nonprofit organization that advocates for pro-animal legislation in Texas.  She speaks regularly on animal issues and has written a book, Careers in Animal Law: Welfare, Protection, and Advocacy, published by the ABA Law Practice Management Section and ABA Law Student Division.  Eisenstein graduated with honors from SMU Dedman School of Law.  She is licensed to practice in Texas and New Mexico.

The Animal Law Committee has approximately 380 members and is growing.  The Committee has been extremely active since its inception providing its members with a variety of resources to promote professional development while also promoting the protection of animals though the law.  The Animal Law Committee has published three books, hosted a number of CLE programs, and created a podcast series.  The Animal Law Committee boasts twelve substantive subcommittees, produces three newsletters a year, maintains an active Facebook page to keep their membership up-to-date on the developments in animal law globally, and annually recognizes the outstanding achievements of one of its members through the Excellence in the Advancement of Animal Law Award.  Through the Tort Trial & Insurance Practice Section, the Animal Law Committee, has sought ABA approval of a number of policy initiatives including the adoption of a Model Act Governing Standards for the Care and Disposition of Disaster Animals while also being active in a number of public interest projects, including the establishment of the Animal Disaster Network and a continuing and expanding humane education project.

STCL’s Animal Law Society was organized in 2007 by three students interested in learning about the practice of animal law. Through their efforts, the organization achieved recognized status as an official student organization the following year. Since that time, ALS has become one of the more visible student groups on campus and has been named Student Organization of the Year four times. Under the leadership of five different presidents since its creation, the group continues to thrive.

The stated mission of the ALS is to “provid[e] a forum for education, advocacy and scholarship aimed at protecting the lives and advancing the interests of animals through the legal system and rais[e] the profile of the field of animal law.” To that end, the ALS brings in speakers each month to address issues of importance to the animal law community and has worked on joint speaker programs with the Houston Bar Association Animal Law Section (HBA-ALS). Past speakers have included, among many others, Belinda Smith, Chief of the Animal Cruelty Section of the Harris County District Attorney’s Office; Officer Joel Caldwell, Commander of the Animal Services Unit of the Galveston Police Department; John Pippin, Director of Academic Affairs for Physicians Committee for Responsible Medicine; Tom Linney with ALDF; and Allie Keaton with My Service Dog, Inc. In one memorable event, ALS joined with the HBA-ALS to present a viewing of Behind the Mask, a documentary about the Animal Liberation Front, followed by a forum on the Animal Enterprise Terrorism Act with Shannon Keith, animal advocate and director of the movie, and STCL national security law professor Geoffrey Corn. Animal law professor Fran Ortiz moderated.

ALS is particularly known for its charitable efforts and has sought to increase its gift-giving every year since its inception. The group holds two main fundraisers, a Howl-O-Ween photo contest in the fall and a silent auction in the spring. Last year, under the leadership of president Christina Fojas, ALS raised over $16,000, the bulk of which was contributed to the Spay-Neuter Assistance Program (SNAP) to provide for five Spay Days with SNAP’s mobile clinic in low-income neighborhoods in Houston and Interfaith Ministry’s aniMeals on Wheels. Last semester’s fundraising efforts, led by president Johanna Miller, have already raised over $4,000, most of which was donated to My Service Dog, Inc., for training of a therapy dog for the physically challenged son of a STCL student. The balance went towards relief for residents and animals displaced by the Texas Wildfires. Past recipients of ALS donations include San Antonio’s Guide Dogs of Texas, Inc., the Houston Humane Society R.A.I.D.E.R. program, Caring Critters (a therapy dog organization), and various organizations assisting in disaster relief in Japan.

This semester’s silent auction fundraiser, led by current ALS president Jennifer Fox, was held February 27 through March 7, 2012 for the benefit of SNAP and Corridor Rescue, Inc., an organization dedicated to helping abandoned animals in Houston’s “corridor of cruelty.”

ALS also maintains funding for the Hon. Michael H. Schneider, Jr. Animal Law Society Scholarship, established by Judge Schneider in 2009. The scholarship is awarded to up to two students annually who have demonstrated an interest in animal law, animal welfare, or animal rights. Anyone interested in contributing to the scholarship may do so by contacting Kim Parker, Vice President of Development and Alumni Relations at South Texas College of Law, at kparker@stcl.edu.

South Texas College of Law offers courses covering animal welfare, animal rights, and management of wildlife resources as well as student internships relating to animal law. For more information about the animal law program at STCL or about ALS, contact Professor Fran Ortiz at fortiz@stcl.edu.

Animal Law Society members man the tables at its annual Silent Auction in 2010.

ALS President Christina Fojas (left) and Vice President (later President) Johanna Miller pose with Student Bar Association President Joe Patranella after ALS was named 2010-2011 Student Organization of the Year.

New officers were announced; Randy Turner will serve as the 2012 Chair with Fran Ortiz as the Vice-Chair. The secretary position will be held by Katherine Killingsworth, and treasurer by Jill Elsey. Four council positions were up for election and were filled by Don Feare, Joel Hailey, Ann Manes, and Dawn Reveley. The remaining four council positions will continue to be held for one additional year by Amy Bures Dana, Bill Davis, Dena Fisher, and Susan Hightower.

Plans are already underway for the 2012 Institute, which is scheduled to take place on Friday, March 9, at the Texas Wesleyan University Law School in Fort Worth, Texas.  For additional information, please visit www.animallawsection.org.

For questions, comments, or suggestions, please do not hesitate to contact Kristen Schlemmer, Chair of the Website Committee, at kschlemmer@gmail.com.

In February of 2001, Samson- a German Shepherd mix, met Moe Nasr. Samson was just a tiny pup of five weeks old at that time- and had arrived at Moe’s office in a box. To say it was love at first sight is an understatement; Moe called his wife Louise right away and proclaimed Samson to be “the best dog in the world.” Moe and Louise adopted Samson and watched him grow to a full 95 pounds. Samson soon became a regular fixture at Moe’s office and loved playing soccer with all the guys- he could even block the ball with his chest!

At age six, the Nasrs were devastated to learn Samson had been diagnosed with cancer, but were hopeful he would overcome the disease with proper care. Sadly, in August of 2009, Samson succumbed to the cancer – possibly due to overtreatment.

After Samson’s death, Moe and Louise contacted Animal Law attorney Amy Bures Danna. They discussed several options, including taking action against the veterinarian that possibly over-treated Samson. Through this process, the Nasrs learned about many Texas animal law issues, and decided that “the only true means to helping animals is through the law.” Because of this, the Nasrs established an animal law scholarship in Samson’s honor at the University of Houston Law Center.

The Samson Memorial Scholarship will be awarded annually to a second or third year University of Houston Law Center student that wins an essay competition on an animal law related issue. The first recipient was Kathy M. Goodwin; she received the $1,000 scholarship at a law school award ceremony on April 20, 2011.

While Louise and Moe still feel Samson’s loss every day, they find satisfaction in knowing that the Samson Memorial Scholarship provides an avenue for them to make a positive impact on animal related legal issues in Texas. Louise and Moe are grateful for the assistance that Amy Bures Danna was able to provide and hope that the scholarship recipients will follow in her footsteps by using their legal expertise to help promote saving animals.

The Animal Rights Debate: Abolition or Regulation
Gary Francione and Robert Garner
Columbia University Press; New York 2010

Gary Francione, who you may remember from his groundbreaking book, Animals, Property, and the Law, and Robert Garner, a professor at the University of Leicester in the United Kingdom, engage in a debate between the goals of the “abolitionist” movement, which advocates vegan education, and those of the animal welfare movement, which supports the end of animal suffering through regulation.

The crux of the argument is whether a total focus on ethical vegan education would have been more successful than what has been achieved through legislation. Francione argues that virtually no progress has been made in animal protection and that time and money would have been better spent over the past twenty years on vegan education.  Furthermore, he argues that the animal protection laws that have been passed and the promotion of “free-range” and “grass fed” has merely served to assure the public that animals are being treated humanely and that there is no moral problem with eating them.

Garner of course, takes issue with Francione’s position and believes it wrong to take an all or nothing attitude while animals suffer.  He sees the vegan route as a “long-term” ambition at best and argues that we should do all we can, even if it means small victories, to reduce animal suffering through legislative means.

For those not familiar with the abolitionist approach, Francione is one of its leading proponents, making it a good primer on the subject. He makes the classic moral arguments against animal exploitation and the inherent problems with their status as property. The only answer for the abolitionist is the complete cessation of the use of animals, including phasing out of pet ownership.

Garner is British and not as well known in the United States, which led me to wonder why he was chosen. Was there no one in the U.S. willing to debate Francione on the issue?  Citizens of the United Kingdom and other Western European countries have a different attitude about animal protection, which made some of Garner’s arguments seem irrelevant to me. I also thought Garner missed some opportunities to make effective arguments.  It is not clear whether that was through a lack of familiarity with American attitudes or his reluctance to be more aggressive in his argument.

While I enjoyed the book at first, it quickly became repetitive and redundant, and I found the dialogue between the two at the end of the book to be particularly so. However, I considered it a “must-read” given Francione’s prominence in animal law and my interest in staying current on the literature.

ANIMAL PATENTS – RIGHT OR WRONG?
It may seem strange and it is definitely controversial, but the United States is one of a select few countries that will grant a patent on an animal, such as a mouse or a dog.  Should the United States grant patents on animals?  Opponents argue that granting animal patents is immoral and unethical, while proponents argue that animal patents stimulate innovation and enhance research related to humanitarian problems.  Hence, a debate rages on. 

What Is an Animal Patent?
Patents may be obtained for non-naturally occurring animals.  This is not to say that you can patent your mixed breed dog or cat, or that you can patent an improved dairy cow or a pig created through years of selective breeding.  A plant or animal that can be found in the wild is not patentable.[1]  Patentable animals are limited to those that have been engineered by humans, and thus do not exist in the wild.  These animals are commonly referred to as “transgenic” animals because their genome has been manipulated with genes or DNA from other animals or humans.[2]  Scientists manipulate these animals to exhibit characteristics that are desired for research or experimentation. 

One of the most famous transgenic animals is the Harvard “oncomouse.”  Researchers at Harvard genetically engineered a mouse that was highly susceptible to cancer for use in cancer research.[3]  In 1988, the United States Patent Office granted a patent on the oncomouse, which sparked a heated debate over the patenting of transgenic mammals.  Pro-patenting groups argue that patent protection is necessary to stimulate funding of the research needed to develop medical breakthroughs, while anti-patenting groups argue that the patenting of animals leads to their suffering and exploitation.  Since the oncomouse patent was granted, over 660 patents have been issued for transgenic animals such as pigs, rabbits, dogs, cattle, and mice.[4]  Patents have been obtained for transgenic animals that help to fight diseases such as Parkinson’s and the HIV virus.[5] 

Who Grants Animal Patents?
Many countries do not allow the patenting of animals.  When the Canadian patent for the Harvard oncomouse reached the Supreme Court of Canada in 2002, the court ruled that higher life forms, such as mammals, are not patentable.[6]  Other countries such as Belarus, Brazil, China, Denmark, India, Ireland, Netherlands, Norway, the Philippines, Russia, and Thailand agree with Canada and prohibit animal patents.[7]  However, in addition to the United States, the European Patent Office, United Kingdom, Australia, and Japan grant animal patents.[8]    

The United States patent system has two noteworthy restrictions related to the availability of animal patents:  (1) a utility restriction that the invention be useful or beneficial to society, and (2) a moral restriction prohibiting patents on human/animal chimeras.[9]  Generally, patents on transgenic animals satisfy the utility restriction because they are used for beneficial research, although inventions directly related to humans are excluded from patent protection.  The European Patent system has additional exclusions for inventions that are contrary to public policy and morality.  Under this regime, non-technological concerns, such as the well-being of animals, ethical consequences, and environmental risks, are considered during the patent process.[10]  Furthermore, in deciding whether to grant an animal patent, the European Patent system weighs the benefits to humanity derived from the invention against the suffering of the corresponding animals.[11]  Several groups feel that these additional non-technological concerns should be adopted in the United States. 

The Great Debate Over Animal Patents
There are numerous groups that oppose animal patents, including the American Anti-Vivisection Society (AAVS), the Alternatives Research & Development Foundation (ARDF), and PatentWatch.  These groups argue that “animal patents provide an incentive to harm animals for economic gain.”[12]  The manipulation of these animals leads to their suffering and exploitation, they argue, especially for animals that are engineered to have a defect or malady that enhances its research value.  As an example of this exploitation, opponents point to:  (1) a patent for creating rabbits with a mutation of the eyes that are used for research on human eyes, and (2) a patent for producing beagles with weakened immune systems that are used for research on infections of the lungs.  Opponents urge that the mutations of these animals and the corresponding research evidence their suffering and exploitation.  Overall, the opponents of animal patents feel that the engineering of animals is immoral and unethical, and that granting patent rights for transgenic animals promotes this practice. 

The proponents of animal patents, including research institutions and biotechnology companies, argue that animal patents “facilitate the development of more efficient food sources and better human disease models, increase productivity, and yield other significant benefits.”[13]  Patents enable investors and companies to risk resources and capital on research and development for the hope of obtaining a patent and the corresponding monopoly.  This provides the necessary incentive to innovate.  For example, the Harvard oncomouse was created to further cancer research in humans, and other genetically engineered animals are used to produce beneficial drugs or medications.[14]  Supporters of animal patents admit that there are moral issues involved, but they believe that the greater good is served by promoting research to solve social and medical problems.[15]  

However, the patent system may not be the proper vehicle to address the concerns animal patent opponents have about animal suffering.  A patent for a transgenic animal provides a relatively brief monopoly for the patent owner (approximately 20 years), but this may not be the main incentive for experimenting with transgenic animals.  Research institutions and corporations use transgenic animals to research treatments and medications that will benefit society, and transgenic animals that exhibit desired characteristics improve the efficiency and quality of this research.  The engineering of transgenic animals will likely continue with or without patent protection.  Moreover, at this time, Congressional action would be required to alter the law concerning the patenting of transgenic animals.  As a result, new laws regarding the control and protection of transgenic animals may provide a better way to address the prevention of animal suffering.   

[1] See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (“[T]he laws of nature, physical phenomena, and abstract ideas have been held not patentable.” (citing Parker v. Flook, 437 U.S. 584 (1978)).
[2] “Bioethics and Patent Law: The Case of the Oncomouse,” WIPO Magazine (2006), http://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html (last visited April 13, 2011).
[3] See U.S. Patent No. 4,736,866 (filed June 22, 1984) (widely known as the first patent for a “Transgenic Non-Human Mammal”).
[4] See “USPTO Accepts Challenge on Legality of Animal Patents,” American Anti-Vivisection Society (2007), http://www.stopanimalpatents.org/images/pressrelease_rabbit_challenge_accepted.pdf (last visited April 13, 2011). 
[5] See, e.g., U.S. Patent 7,550,649 (filed Oct. 28, 2004) (claiming a transgenic mouse that is a model for Parkinson’s disease); U.S. Patent 5,574,206 (filed Aug. 24, 1994) (claiming a transgenic mouse carrying a transgene that expresses non-infectious HIV RNA).  
[6] “Bioethics and Patent Law: The Case of the Oncomouse,” WIPO Magazine (2006), http://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html (last visited April 13, 2011).
[7] Stop Animal Patents FAQ, http://www.stopanimalpatents.org/faq.html (last visited April 13, 2011). 
[8] Id. 
[9] Jerzy Koopman, “The Patentability of Transgenic Animals in the United States of America and the European Union: A Proposal for Harmonization,” 13 Fordham Intell. Prop. Media & Ent. L.J. 103, 179-181 (2002). 
[10] See id. at 181. 
[11] See id. 
[12] See “USPTO Accepts Challenge on Legality of Animal Patents,” American Anti-Vivisection Society (2007), http://www.stopanimalpatents.org/images/pressrelease_rabbit_challenge_accepted.pdf (last visited April 13, 2011). 
[13] David Manspeizer, “The Cheshire Cat, the March Hare, the Harvard Mouse: Animal Patents Open up a New, Genetically-Engineered Wonderland,” 43 Rutgers L. Rev. 417, 455 (1991). 
[14] See id. at 426-28. 
[15] See id. at 455.