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REDEFINING "LIFE": THE CONSTITUTIONAL
IMPLICATIONS OF PATENTING IMMORTALITY

BIBLIOGRAPHIC REFERENCE:

AUTHOR: Julia Spivak

TITLE: REDEFINING "LIFE": THE CONSTITUTIONAL

IMPLICATIONS OF PATENTING IMMORTALITY

JOURNAL: Cardozo Arts & Entertainment Law Journal.

VOLUME: vol. 37.

ISSUE:
YEAR: 2019
PAGE NUMBER: 803-834
INTRODUCTION:
In the life extension movement, longevity escape velocity (LEV) or actuarial escape velocity [2] is a hypothetical
situation in which life expectancy is extended longer than the time that is passing. For many years in the past,
life expectancy at each age has increased slightly every year as treatment strategies and technologies have
improved. At present, more than one year of research is required for each additional year of expected life.
Longevity escape velocity occurs when this ratio reverses, so that life expectancy increases faster than one year
per one year of research, as long as that rate of advance is sustainable. For most of history, humans lived about
25 years. Real acceleration emerged at the turn of the 20th century, when everything from the creation of
antibiotics to the implementation of better sanitation to the increased availability of clean water, and the ability
to tackle killers like cancer and heart disease has us living routinely into our 80s. But many scientists believe
we’re not stopping there. Technological convergence is fueling this conviction. The intersection of artificial
intelligence, cloud computing, networks, sensors, robotics, massive datasets, biotechnology, and
nanotechnology is taking direct aim at the limits of human lifespan. From a macroscopic perspective,
researchers now know there are nine major causes of aging, ranging from stem cell exhaustion to epigenetic
mutation to telomere attrition. The longevity space is exploding and in very particular directions. There is a
myriad of researchers and at least two to three serious companies working on each of these issues.

OBJECTIVES
 To understand the concept longevity escape velocity (LEV) or actuarial escape velocity.

 To examine the constitutional implications and limits.

BRIEF SUMMARY

Distinguishing a Cure to Aging from Other Drugs and Therapy :

Many consider immortality the exclusive preserve of theological speculation. Recently, however, scientists have
begun to employ the term. By researching ways of synthetically replacing human tissues, medical researchers
have begun to raise the stakes of their interventions, from fighting disease to vanquishing death itself.
According to William Haseltine, leader of a major biotechnology company, "It's a reasonable conjecture that we
age because our stem cells age, and that if we were able to replace them with new and younger cells, we could
continue healthy life in perpetuity."6 If stem cells can be stimulated to grow into replacement tissues and
organs, "death itself can be considered a disease."7 Emboldened by the new technology, a small cult in France
and Canada aims to use similar scientific techniques to clone individuals, in an effort to assure them deathless
genes. principles of the common law that emerge from holdings in individual cases,' a rough societal consensus
is beginning to crystallize moral judgments about whether particular medical interventions are legitimate.
PATENT LAW TODAY: PRIVILEGES, ABUSES, AND RESPONSE

Accompanying social, economic, and political climate changes in our country's history, patent law evolved a
great deal since it was first addressed in the Constitution and codified in the Patent Act of 1790. The requirements for
an invention to be patentable have become more specific, and these changes are codified in the current U.S. Patent Act.
The Act describes patentable inventions by writing, whoever invents or discovers any new and useful process, the
machine, manufacture, or composition of matter, or any new and useful improvement. A patent gives the inventor the
right to exclude others from making, using, offering for sale, or selling the invention throughout the United States for a
limited time. A lack of ability to recover the costs of researching and developing drugs creates a lack of incentive for
pharmaceutical companies todevelop drugs for the market.68 In fact, it is common practice in the pharmaceutical
industry for companies to screen the drugs they are considering developing and to exclude the ones that are
unpatentable. The harmful practice of screening drugs for patentability demonstrates how important patent protection is
to pharmaceutical companies and shows that the recovery of investment in a drug is a foremost priority. As such, while
the monopoly that patent law grants allow for the recovery of these high costs incurred, it is often abused, usually to the
detriment of individuals seeking access to the drugs..

CONSTITUTIONAL PATENT POWERS AND THEIR

LIMITATIONS :
Popularly referred to as the “IP Clause,” Article I, Section 8, clause 8 of the United States Constitution states
that Congress may grant patents and copyrights so as to promote the Progress of Science and the useful Arts.”1
The IP Clause’s limits on Congress’s enumerated power to regulate patent and copyright have prompted a fierce
scholarly debate on the text, structure, and history of the IP Clause. I contend, however, that amidst this fierce
debate, we have ignored another important purpose of the IP Clause: its role as a constitutional norm. A
constitutional norm, as identified by Hiroshi Motomura, is an interpretative principle that judges use to analyze
“rules in subconstitutional forms,” such as “statutes, regulations, and administrative guidelines. Arguably one of
the most important clauses in the Constitution, the Due Process Clause was created to ensure procedural due process 12'
and has been interpreted by courts to grant substantive due process to citizens as well. The clause is structured to read
that due process of law must accompany the deprivation of life, liberty, or property, and it does not need to accompany
the deprivation of interests other than those three. The human lifespan has nearly doubled since the Constitution's
formation, and yet the importance of life and the Framers' high regard for it has not been reinterpreted or given any less
protection by lawmakers and the courts than it was given in the eighteenth century. “Aging and age-related diseases
are part and parcel of the human condition,” says Goldfarb. “It would be thrilling if these compounds improve
the lives of people who are suffering.”Rapid advancements in human neuroscience and neurotechnology open
unprecedented possibilities for accessing, collecting, sharing and manipulating information from the human
brain. Such applications raise important challenges to human rights principles that need to be addressed to
prevent unintended consequences. This paper assesses the implications of emerging neurotechnology
applications in the context of the human rights framework and suggests that existing human rights may not be
sufficient to respond to these emerging issues. After analyzing the relationship between neuroscience and
human rights, we identify four new rights that may become of great relevance in the coming decades: the right
to cognitive liberty, the right to mental privacy, the right to mental integrity, and the right to psychological
continuity and patenting such natural occurrence questions right to life to an extent.
AN ALTERNATIVE FRAMEWORK FOR EVALUATING WHETHER
PATENT PROTECTION SHOULD BE GRANTED IN THE CURE TO
AGING
The Fifth and Fourteenth Amendments, the Framers of The constitution could not have anticipated or intended for the
Intellectual Property Clause to grant systematic patent protection over the cure to aging just as it does over other drugs
and therapies, since granting a patent for the cure to aging and the Framers' belief that individuals have an inalienable
right to life cannot be reconciled. Admittedly, one cannot attribute to all humanist ideologies similar structures of
motivation regarding ultimate concerns. Anarchists and hedonists do not obviously mirror religious modes of thought. But
such secular philosophies, like others less individualistic in tone, nevertheless share the ontological presuppositions of the
world religions: a community of humans all facing death. Based on the high value of an individual's right to life, it must
be strongly considered when weighing the private interests of her right to life under the Modified Mathews Test. If the
cure to aging redefines lifespan by drastically increasing its duration, everyone would seek to obtain regenerative
therapies and live in a state of peak physical and mental function. The private interest in the redefined lifespan of the
class of people who cannot access the cure to aging and must wait years for general availability of the drug or therapy
is great.

ANALYSIS

IDEOLOGICAL DEBATE: NEGATIVE AND POSITIVE IMMORTALITY :

Like Horace (albeit usually in humbler ways), persons in countless ages and places have responded to their own
finitude by identifying with timeless roles, goals, and institutions. In the West, these cultural responses to death
can be usefully classified into two camps: religious and secular humanism. Since the Enlightenment, these
humanisms have developed widely divergent views on mortality. Secular humanists have often characterized
theistic beliefs in an afterlife as self-delusion or distraction. But the inarticulacy of their own attitudes toward
death threatens to undermine the very ideals they seek to advance. Modern secular ideologies began as a
reaction against these religious traditions. They sought to elevate the human by discrediting the supernatural.
humanism as a revolution in our "moral sources," the basic ideas that motivate human action and aspiration.
Like most revolutions, it has tried to root out the old regime. But the secular humanist reaction against theistic
belief in an "afterlife" may be self-defeating. For while the intellectual conflict between theism and secular
humanism has dominated contemporary Western thought on death, it does not exhaust our cultural responses to
mortality. Persons may also approach death with an anti-humanist or post-humanist mentality. New efforts to
"conquer death" through science-either through artificial intelligence or biotechnology constitute a radical
challenge to both religious and secular humanist responses to death.

The promise of immortality-be it from priests or scientist-always deserves skepticism. Its offeror makes the
grandest claim-not merely to provide one particularly valued experience, but to grant the opportunity to have
them all. Heretofore those making such a grand promise-those offering positive immortality -have had to
condition its achievement on a great sacrifice: the loss of one's earthly existence. In any event, technological
forecasting matters less to a discussion of the feasibility of negative immortality than does an awareness of the
deeply value-laden quality of this supposedly "scientific" determination. Despite the efforts of Alan Turing and
others to develop a "test" for determining when life is artificially generated," debates continue as to the meaning
of such tests. If individuals begin to identify with those aspects of themselves most tractable to the preservation,
they will ensure the success of new technologies of negative immortality. The skeptical gerontologist Paul
Hayflick illuminates the risks inherent in the projects of immortality, warning that we might lose our identity in
the biological shuffle: "Given the possibility that you could replace all your parts, including your brain, then
you lose your self-identity, your self-recognition. You lose who you are! You are who you are because of your
memory. As Clifford Geertz has observed, man is a being "suspended in webs of significance," largely of his
own making.122 Far from being one of many potential transducers, the body qua body is the only reliable
vehicle for perceptions continuous with those we now experience.

CONCLUSION:
The task and potential greatness of mortals lie in their ability to produce things-works and deeds and
wordswhich would deserve to be and, at least to a degree, are at home in everlastingness.Our age demands a
principled response to technological advance. Instead, the media confronts us with a dizzying array of
perspectives. Stem-cell research is censured one day and praised the next. Some declare genetically engineered
crops and animals to be a crime against nature; others believe they will end world hunger. Unquestioned good
threatens to drag in its wake incalculable harm. Most Americans approach these developments with a curious
mixture of optimism and fatalism. We hope consumer demand will somehow domesticate ominous research
agendas. Faith in the invisible hand feeds on a tacit conviction that "progress" is inevitable and unchangeable.
Like any great human project, medicine expresses the best and worst, the grandeur and misery, of human
nature. In coming years we will face ever deeper demands from the new medicine ranging from federal funding
for research to permission for new human-subject experiments. Despite the difficulties of reconciling patent
protection for the cure to aging in the current patent law climate with the importance of individuals' right to life,
a balancing test must be conducted to determine whether a patent should be granted.