Who would own the Woolly Mammoth if scientists brought it back?

What if some extinct species – especially animals that are considered particularly 'charismatic' such as the Woolly Mammoth, the Passenger Pigeon, the Thylacine or the Dodo – could be returned in some form to the environment through science? What social biases and value formations would influence the choice of candidate species? Would these recreated species be patent eligible subject matter? And could patents be used to attract investment to such projects, and provide an avenue to recoup expenditure?

In recent months, gene-editing company, Colossal Biosciences, have claimed that scientists will recreate ("de-extinct" to use more precise terminology) extinct species such as the Woolly Mammoth, the Tasmanian Tiger and the Dodo – or at least something that resembles them – by 2028.

This might seem a little bit too like Jurassic Park for your liking, but it is not theoretical: a rewilding experiment known as ‘Pleistocene Park’ has already been launched in the Siberian Arctic in the anticipation of the release of large herbivores or ‘Woolly mammoth’ type species in the next few decades, while a collection of high-profile celebrities, such as Lord of the Rings director Peter Jackson, producer Fran Walsh, and Paris Hilton, have reportedly invested millions in Colossal Biosciences.

Of course, there are significant technical challenges involved in genetically engineering an extinct species, but the principal barrier to de-extinction, at least until recently, appears to have been cost – the process is incredibly time-consuming and demands extensive investment in terms of research personnel and finances. As Harvard geneticist, George Church, observed in September 2021, the Woolly Mammoth project has been 'kicking around for years, but nobody has ever given it enough funding to get it off the ground'.

Although there has been media fanfare recently about the millions of dollars in seed funding that Colossal Biosciences has secured from investors, the cost of de-extinction will inevitably vary by species. Moreover, the pace of de-extinction progress will largely depend on the resources that its proponents are able to attract.

Yet given the significant investment – reputedly $235 million to date – it is plausible that if they succeed in recreating the mammoth and other extinct species, Colossal may wish to patent their recreations in order to leverage investment to the other projects. This possibility was alluded to by Colossal CEO, Ben Lamm, in a 2022 interview in Wired magazine, where he is quoted as saying that ‘his goal with Colossal isn’t to directly monetise the mammoths themselves’, although he added that he wasn’t 'closing the door' to patenting whole animals one day.

Without private investment, it is likely that these particular de-extinction projects would never have got off the ground, but having patent protection may become essential in the future in order to maintain and encourage investment in such projects. As Lamm points out, ‘de-extinction is expensive from a process perspective’.

My colleague, Professor Aisling McMahon, and I have previously explored the reasons why patents might be applied for in the de-extinction context in the Journal of Law and the Biosciences, but Lamm notes that it is more likely, at least initially, that patent applications will be filed for technological developments associated with the de-extinction processes rather than de-extinct animals themselves. Indeed, he notes that his goal, with Colossal Biosciences, is to patent and license other technology that they develop along the way.

For example, they might need to create giant artificial wombs to grow the mammoth-elephant hybrids, and that technology might help extremely premature babies survive outside the body. Other techniques that Colossal develop for gene editing and storing animal DNA might also be helpful for scientific research or conservation efforts. As Lamm puts it, ‘I think you may get more value out of the technology than the resulting genomes’.

Our Irish Research Council funded Coalesce project, Jurassic Patents, has concluded that patent law may not only play a key role in the post de-extinction process, but also in driving which species will ultimately be selected for de-extinction. From an economic viewpoint, the financial costs of the de-extinction process are substantial and may even inadvertently lead to biodiversity loss if funding competes with conservation actions. This outcome will generate a strong incentive to recover the costs associated with de-extinction, in particular through avenues that do not compete with conservation funding, and hence with it, drive the need to protect investments through patents.

However, conservation is fundamentally a social process and is driven by value judgements. Decisions regarding the commitment of limited conservation resources is essentially driven by how society engages with nature, with popular charismatic species receiving the majority of public support and funding. For example, zoo collections with large mammals generate higher financial incomes and, in turn, contribute more towards conservation, while charismatic species receive an unequal proportion of conservation funding in Europe. Put otherwise, whether a species becomes extinct is not just the result of anthropogenic pressures, such as habitat destruction and climate change, but is also due to how wider society engages with conservation.

Hence, the unfolding horizon of de-extinction is likely to be not only influenced by the existing patent law landscape, but also the social biases in conservation and wider society. Even Tori Herridge, a paleobiologist at the National History Museum in London, who considers the whole idea to be ‘ethically flawed’ admits that, ‘it will make a huge amount of money for the person who clones – and maybe patents – the woolly mammoth’ and, despite all her protests, she acknowledges that: ‘I’d pay to see one if it was there, wouldn’t you?’

This article originally appeared on RTÉ Brainstorm