During World War I, the US Congress authorised the Patent and Trademark Office to temporarily classify certain defence-related patents in the interests on national security.[21] The legislation was extended during World War II to allow the Commissioner of Patents to prevent publication or disclosure of a patent where it might be “detrimental to the public safety or defence,” as well as to compensate the applicant if the subject matter of the patent is used by the military.

The laws were eventually replaced with the Invention Secrecy Act 1951 (US), which allows the American Federal Government to issue secrecy orders via the Commissioner of Patents, which are subject to an annual renewal process, except in times of war or national emergency. The use of these orders has been on the rise:[22] 5,445 secrecy orders were in effect in 2013, and 5,579 in 2015.[23] For example, Juliet Marine Systems developed a stealth boat which was unexpectedly made subject to a secrecy order in October 2009, thereby forbidding them from filing patents overseas or disclosing anything to potential investors until the order was lifted two years later.[24]

Other Jurisdictions

In Canada, the Minister of National Defence may take ownership of a patent for “any invention in instruments or munitions of war,”[25] and has the power to make the invention secret under s 20(5). The inventor(s) become(s) subject to s 4 of the Security of Information Act, and are thereby banned from communication of any details of the invention without the authority of the Minister of National Defence. Under s 20(9) of the Patents Act, the information may be kept secret until the expiration of the patent, or until it is waived by the Minister.

The Australian Department of Defence is empowered under s 152 of the Patents Act 1990 (Cth) to prohibit the publication of the details of a patent application, at which point it must be handled by a patent examiner with the requisite security clearance.[26] The prohibition order may remain in force until the expiration of the patent, unless it is revoked by the Department of Defence. Similar provisions can be found in ss 132-134 of the New Zealand Patents Act 2013.

However, while Cosima’s lab partner raised a very interesting point about the potential use of secrecy orders over patents, the fact remains that human clones are not patentable (and if they were, the patents would have expired). There can be no secrecy order if there is no valid patent to begin with.

7 Ownership of Humans

As far as tangible property rights are concerned, the message in Cosima’s genome asserted proprietary rights over her body, and any derivative material. Since the abolition of slavery, there has been a strict legal separation of property rights and personhood. In fact, property rights over human body parts have arguably been excluded from legal protection for two millennia: the Roman jurist, Ulpian, gave the maxim dominus membrorum suorum nemo videtur (“no one is the owner of their own limbs”), which has been interpreted in the English law to mean that a living human body cannot be the object of property rights.[27] In words of Justice Edelman of the Federal Court of Australia:

“Whatever meaning is given to ‘property’, it is independent of personhood. The antithesis of ‘property’ is personhood. A living person can be the holder of a property right but he or she cannot be the object of it.”[28]

The Romans would also consider the deceased clones to be res extra patrimonium and res extra commercium; a corpse is generally inviolable and unsaleable.[29] In modern jurisprudence, the Supreme Court of California has affirmed the Roman principles: the Court in Moore v Regents of the University of California[30] rejected a property claim over Moore’s own body parts (his spleen, blood, skin, and sperm) which had been used without consent for commercial purposes. Justice Panelli, in the plurality judgment, remarked:[31]

“Neither the Court of Appeal's opinion, the parties' briefs, nor our research discloses a case holding that a person retains a sufficient interest in excised cells to support a cause of action for conversion. We do not find this surprising, since the laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property… The ramifications of recognizing and enforcing a property interest in body tissues are not known, but are greatly feared for the effect on human dignity of a marketplace in human body parts, the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability.”

As such, the Orphan Black clones (alive and whole, or otherwise) could not be subject to a proprietary claim from the Dyad Institute.

8 Legality of Cloning

The law is concerned with two main types of cloning: (i) therapeutic cloning, which is the use of clonally propagated stem cells for the purposes of scientific research and medical treatment, and (ii) reproductive cloning, in which a cloned embryo is implanted into a womb.[32] While therapeutical cloning is legal in many states, the Orphan Black clones were created by reproductive cloning, which is generally illegal.

In March 2005, the United Nations General Assembly adopted the Declaration on Human Cloning, which called on members to adopt all measures necessary to prohibit human cloning inasmuch as it is incompatible with human dignity and the protection of human life.[33] The Declaration also called upon members to prohibit the application of genetic engineering techniques that may be contrary to human dignity and to prevent the exploitation of women in the application of life sciences. However, the Declaration has no binding authority over UN members, and would have no impact upon the legality of producing the Orphan Black clones.

Article 3(d) of the Charter of Fundamental Rights of the European Union explicitly prohibits reproductive human cloning. France, Germany, Austria, Italy and Russia have completely banned human cloning, to name a few. In the United Kingdom, reproductive cloning is banned,[34] while therapeutic cloning has been tightly regulated by the Human Fertilisation and Embryology Authority since 1990.[35] The Dyad Institute could not have (legally) produced the Orphan Black clones in the United Kingdom, nor any other EU member states. Furthermore, the Council of Europe has specifically banned reproductive cloning in the Convention on Human Rights with Regard to Biomedicine 1997, which held to apply in European countries where no legislation has been passed to address the legality of human cloning.[36]