The individuality of clones is a popular theme in science fiction, one explored in the acclaimed BBC America show “Orphan Black.”

The idea that clones are, for better or for worse, not the same as their originals may be a thought-provoking concept. But as a legal argument, it didn’t pass muster with a federal appeals court in a case about whether clones of farm animals may be patented.

Ruling against the inventors of Dolly the sheep, the U.S. Court of Appeals for the Federal Circuit on Thursday held that clones — like all other existing organisms — aren’t patent eligible.

The decision, which affirmed a final decision of the Patent Trial and Appeal Board, came more than 15 years after Ian Wilmut and the late Keith Campbell, the researchers who created Dolly the sheep at the Roslin Institute in Edinburgh, first filed a patent application.

The scientists have obtained patents on their cloning method. But here, the issue was whether they could make an intellectual property claim over the products of their research — the replica cattle, sheep, pigs and goats.

Lawyers for Roslin argued that it should be possible to get a patent on clones because they aren’t exact copies of the donor mammals.

The clones, they argued, have physical differences caused by environmental factors. And they also exist in a different period of time from the originals, referring to the clones as “time-delayed genetic” copies.

“Appellant’s clone is not a phenomenon of nature, but is man-made,” Roslin’s lawyers wrote in a brief to the Federal Circuit. “Dolly the sheep was a product of human ingenuity. She is clearly a distinct sheep from the donor sheep of which she is a clone.”

The Federal Circuit wasn’t convinced. Dolly, who died in 2003, is “an exact genetic replica of another sheep,” rendering her unpatentable, wrote Judge Timothy Dyk for the panel.

“Indeed, the word ‘cloned’ in the pending claims connotes genetic identity,” he added.

“The Federal Circuit really decided that Dolly wasn’t patentable because she was too similar to her parent,” Roslin’s attorney, Salvatore Arrigo, told Law Blog.

That reasoning, he said, means that in future patent cases involving a man-made organism, “it’s not simply a question of whether it’s a product of nature, but it’s how different it is from the product of nature.”

(Published by The Wall Street Journal – May 9, 2014)