University of California, San Francisco s4

A NOVEL TECHNIQUE FOR TRANSFORMING THE THEFT OF MORTAL HUMAN CELLS INTO PRAISEWORTHY FEDERAL POLICY

Leonard Hayflick, Ph.D.

University of California, San Francisco

Department of Anatomy

P.O. Box 89

The Sea Ranch, CA 95497

E-mail:

(Modified and updated from a lecture originally presented March 6, 1989 at the Seminar on Clinical and Research Applications of Human Cells and Tissues, American Association of Tissue Banks, Arlington, Virginia.)

Published in Experimental Gerontology 1998, 33, 191-207.

Abstract - A revolution has occurred in the attitude of biologists toward their intellectual property rights. What today is patentable and highly profitable was, twenty years ago, unpatentable and given away for nothing. The history of this revolution began in the early 1960's when we made the first effort to have self-duplicating cell strains patented. The application was denied because patent law at that time did not included living matter. Because of the demand for our normal human diploid cell strain, WI-38, by NIH grantees, NIH support was provided to distribute WI-38 gratis to hundreds of recipients. These included vaccine and cell manufacturers who profited enormously from the direct sale of WI-38 or it’s use as a substrate for many human virus vaccines. When federal support for the distribution of WI-38 ended, but demand did not, I continued to distribute it for costs similar to those made by the American Type Culture Collection. When I took the first initiative and asked NIH to have the then unique question of title to a self-duplicating system resolved, they sent an accountant who accused me of theft of government property. I replied with a lawsuit that, after six years of litigation, we won with an out-of-court settlement. During these six years the United States Supreme Court ruled that living matter could be patented. Also, the biotechnology industry was launched by biologists who, like me, started companies using cells or microorganisms developed with federal support. This use of intellectual property rights by the nascent biotechnology industry was ultimately embraced by the entire biological community and by a directive from the President of the United States. This revolution has now evolved to the point where government biologists themselves may profit from research in federal laboratories and the NIH itself aggressively seeks private commercial alliances. Universities have also pursued similar alliances to the extent that today the distinction between a research university and a commercial organization is only in the eyes of the Internal Revenue Service.

Key Words: Intellectual property rights, WI-38, theft, NIH, patents, profits

INTRODUCTION

Alex Comfort played a crucial role in the events to be described. He did so because, like other colleagues, he was enraged by the enormity of an injustice that was being perpetrated by the administration of Stanford University and the National Institutes of Health (NIH). Without his clarion call for justice made to the editors of Science Magazine and to others who believed without question the version of events that came from the Public Relations Offices of these institutions, the events to be described would not have reached the happy conclusion that they did.

I dedicate this article to an uncommon man, Alex Comfort, physician, scientist, biogerontologist, novelist, essayist, poet, playwright, translator, raconteur, amateur radio operator, the Founding Editor of EXPERIMENTAL GERONTOLOGY, and magnificent iconoclast.

Twenty years ago a tenured medical school professor was accused of stealing government property, handed over to the local police by their university, investigated by the district attorney, shunned by his colleagues and illegally denied an NIH approved grant by the Department of Health and Human Services for doing what, today, is encouraged by all universities, ignored by the police and the district attorney, admired by their colleagues, championed by the NIH, and stated by the President of the United States to be Federal policy.

The act that I speak of is the sale, or commercial exploitation, of selfreproducing biological systems discovered by university biologists, partially or fully funded by the NIH. As the first, and only, American biologist ever to have experienced all of these events I believe that I can speak to the issues with some authority.

This episode, which began thirty-five years ago, should command

the attention of all biologists for at least three compelling

reasons. First, the matter of title, or ownership, of novel

selfreproducing biological systems which is the sine qua non of

the biotechnology industry has not been settled even after my experiences and that of other colleagues. Second, the

consequence of this neglect is that all academic scientists engaged in the development of new biological systems with potential commercial value remain potential victims of charges of theft. The third reason why the scientific community should be interested in resolving this problem is that most of the attitudes surrounding this issue have changed so dramatically in the last thirty-five years years that it provides a monumental lesson in how fast the mores of thousands of previously apathetic scientists and their administrators can change when the interests of thousands transcend the identical interests of a single person.

Alex Comfort whose role in this issue will be discussed subsequently, was so distressed by the behavior of Stanford University and NIH officials that he chose to dedicate the 3rd edition of his landmark book, “The Biology of Senescence” (Comfort, 1979) to me with the latin inscription:

IN . CIVIVS . CALVMNIATORES . MINGIMVS

a free translation of which is: “We piss on those who malign.”

GENESIS

This story began thirty years ago when Paul Moorhead and I described the finite replicative capacity of normal human

fibroblasts and interpreted the phenomenon as aging at the cell

level (Hayflick and Moorhead, 1961). We showed that when human

embryonic cells are grown under the most favorable conditions,

aging and death is the inevitable consequence after about fifty

population doublings. We called this the Phase III phenomenon.

We showed that, contrary to dogma of sixty years duration, the death of cultured normal human cells was not due to some trivial cause involving ignorance of proper medium components or culture conditions but was an inherent property of the cells themselves. The observation has since been confirmed in hundreds of laboratories worldwide(Hayflick, 1979; Norwood and Smith, 1985; Norwood et al., 1990).

At the time that our observation was made, the paramount

dogma in cell culture biology since its development in the late 1800's was that the failure of cells to proliferate indefinitely in vitro must be attributable to errors in the “art" required to keep cells dividing forever. That dogma was so well entrenched that our original manuscript in which we described the Phase III Phenomenon, was rejected in 1960 by The Journal of Experimental Medicine with the statement that “The largest fact to have come out from tissue culture in the last fifty years is that cells inherently capable of multiplying will do so indefinitely if supplied with the right milieu in vitro." The letter was signed by Peyton Rous, soon to be awarded the Nobel Prize in Medicine or Physiology.

His belief, then universally accepted, was tantamount to the conviction that, given the right milieu in vivo, human beings also will live forever. Ponce de Leon called the right milieu in vivo “The Fountain of Youth" and those who believe that any cultured normal cell must be immortal if only the right medium can be found are, like Ponce de Leon, still searching for that fountain of youth even after 35 years of failed efforts (Rubin, 1997).

In our description of the human diploid cell strains we

reported that they have several interesting properties (Hayflick and Moorhead, 1961):

First, if derived from human embryos, cell strains undergo about fifty population doublings. The potential cell yield from fifty population doublings is about twenty million metric tons.

Second, we found that human diploid cells undergo a number of population doublings inversely proportional to donor

age. This suggested to us that the finite replicative capacity

of cultured normal cells is an expression of aging at the cell

level. This notion received considerable experimental support in

subsequent years and became the basis for the burgeoning field of

cell aging that we named "cytogerontology" (Hayflick, 1974).

Third, we showed that, if derived from normal tissue, cell

strains have the diploid karyotype and, unlike immortal cell

lines, normal cell strains are incapable of replication in

suspension culture. Later this property was named anchorage

dependence.

Fourth, we also demonstrated that human cell strains will not

produce tumors when inoculated into the hamster cheek pouch or

even when directly inoculated into terminal human cancer

patients.

Fifth, we showed that human diploid cell strains can be cryogenically preserved. When, for example, our first widely distributed normal human diploid cell strain, WI38, which we developed in 1962, is preserved at a particular doubling level and then reconstituted, the number of doublings remaining is equivalent to fifty minus the number of doublings spent prior to preservation. The cells have an extraordinary memory and “remember" at what doubling level they were preserved even after thirty-five years years of continuous storage in liquid nitrogen. WI38 has been preserved longer than any other normal human or animal cell population.

As a result of this characterization we suggested that

all cultured animal and human cells be classified into three

groups:

First, the primary cell culture, derived from intact tissue and undergoing no subcultivations. Second, the cell strain which has (1) a finite capacity to replicate, (2) does not produce tumors when inoculated into experimental animals, (3) has the karyology of the tissue of origin and (4) is anchorage dependent.

The third class is the cell line which is (1) a population of immortal cells, that (2) may produce tumors when inoculated into laboratory animals, (3) does not have the karyology of the tissue of origin and (4) are usually anchorage independent.

We thus made the distinction, for the first time, that cultured cells were either mortal or immortal and that immortality resulted from the transformation of mortal normal cells (Hayflick and Moorhead, 1961 and Hayflick, 1965).

These distinctions, made thirty-five years years ago, have maintained their validity to this day when an understanding of the mechanisms of immortalization has become a major quest.

HUMAN VIRUS VACCINES

In our first report on the human diploid cell strains we

demonstrated the broad human virus spectrum of these cells

and suggested that human diploid cells could provide a superior

substrate for the production of human virus vaccines. In 1962 we

prepared the first vaccine produced in human diploid cells and

showed this poliomyelitis vaccine to be safe and efficacious

(Hayflick et al., 1962). We argued that a diploid cell strain was safer than the primary cell populations then used because of the ability to thoroughly test this class of cells before use. We introduced the concept of a master cell bank and a working cell bank now universally used in the biotechnology field (Hayflick and Jacobs, 1968).

These processes resulted for the first time in a reliable method for cell characterization based on one concept standardization.

In spite of these obvious benefits the use of human diploid cell strains for the production of human virus vaccines met with enormous resistance. This resistance was led chiefly by

the then Division of Biologics Standards (DBS), NIH (now called CBER and a part of the FDA) that controlled all vaccines licensed for use in the United States. After ten years of educational efforts and striking successes with diploid cell strain vaccines in Europe, the DBS finally licensed a poliomyelitis vaccine made in our human diploid cell strain WI38 in 1972 a decade after the original proposal was made (Hayflick, 1984).

Today, there are many licensed human virus vaccines produced in WI38 or similar strains. These include polio, adenovirus types 4 and 7, rubella, rubeola, varicella and rabies. For example, all of the rubella vaccine used in the Western Hemisphere is produced in WI-38. Hundreds of millions of people throughout the world have been inoculated or fed vaccines produced in WI38 and other human diploid cell strains with no reports of untoward effects traceable to the cell substrate itself.

TURNING THEFT INTO NATIONAL POLICY

In 1975 an incident involving WI38 occurred that was to have a profound effect on our concept of intellectual property rights and the emerging biotechnology industry. That incident involved the ownership, or title, to WI38 specifically. But

generally, it involved title to all selfreproducing systems.

When we first described the human diploid cells, efforts were

made by the Wistar Institute, where I worked, to patent them. It was 1962 and the United States Patent Office held that no patent law covered living systems like these cells.

In 1962, because of the enormous demand for WI38 starter

cultures by NIH grantees, the NIH provided us with a contract to “Produce, Store and Distribute" it. In the spirit of the prevailing scientific attitudes in the 1960's, original ampules of WI-38 were given gratis to commercial cell culture manufacturers, pharmaceutical companies, and cell repositories worldwide including those in the U.S.S.R. and in Eastern Block countries.

In the decade after WI38 was developed I have conservatively estimated that WI38 starter cultures sold by cell culture manufacturers alone grossed well over twenty-five million dollars. No value has been put on the additional hundreds of thousands of WI38 cultures used by vaccine manufacturers or cultures sold by third and fourth parties. No funds reverted to me, the Wistar Institute or to the Federal government.

The attitude during those years was that academic biologists had no intellectual property rights, nor should title be vested in them or their institutions for their development of new or unique life forms. Intellectual property was simply given away by starry-eyed biologists because the taint of commercialism could ruin an academic career. But, there was incredible irony and injustice in this. Commercial organizations, and even the Eastern Block countries could, and did, freely obtain WI26 (an earlier human diploid cell strain that we developed) and WI38 from me and sold or used them to produce enormous profits. Yet, the academic institutions, the federal government, and even we, the scientists who actually developed the cells, were forbidden from benefitting.