issue 217 - March 1991
John Moore's body
Not everything inside John Moore's body necessarily belongs
to John Moore. Pat Roy Mooney reports on the transnational companies
that claim our organs - and much more besides.
When Quincy McKeen of New England holidayed in Guatemala some years ago, he brought home wild flowers, and choosing the most beautiful he claimed it as his discovery and got himself Plant Patent 559. The rainforest did the work but McKeen got the royalties.
Jerry L Stimac of the University of Florida, US, did something similar. He imported a fungus from Brazil which was poisonous to fire ants (and could be used to control them biologically) - and patented it. Scientists had obtained the fungus from Brazilian colleagues who in turn learned of its usefulness from local farmers. This time unnamed farmers had the genius but Stimac got the profits.
Angharad Gatehouse was sent by his university to look for cowpeas in West Africa. He was given a handful, gleaned from farmers' fields, by The International Institute of Tropical Agriculture. Using new biotechniques on the cowpeas, Gatehouse and his friends isolated a specific gene which confers resistance to insect pests and can be inserted into crops like soybeans and maize. Gatehouse moved from the University of Durban to the biotech 'boutique', Agricultural Genetic Company of Cambridge. Once the gene was described, Agricultural Genetics filed patent applications for their 'invention' around most of the Western world. The West African farmers who discovered and used the plant's special qualities have long been forgotten.
Plant piracy of Third World fields and forests is common. Consider the 'Polo' potato from Bolivia now being adapted for Western convenience in the US and probably worth millions of dollars. Or the 'Alcobaca' tomato from Brazil which has a shelf-life of several weeks and could revolutionize the West's tomato industry.
And don't forget medicinal plants. According to the magazine put out by the pharmaceutical industry, Scrip, each of the 200 endangered drug-yielding plant species known in the tropical rainforests may have a market value of millions. By early next century the global market for medicinal plants could be worth maybe $47 billion.1
The drug company Merck Sharpe and Dohme is working with Brazilian counterparts to exploit an anticoagulant called Tiki-uba used by the Urueu-wau-wau of the Brazilian state of Rondonia. Not to be outdone, another major company, Monsanto, is hot on the trail of several of the 1,000 medicinal plants used by the Jivaro peoples on the Brazilian-Peruvian border. The companies not only want the plants but also the knowledge of the people who discovered them.2
Pirates become jailers.
It was in the Philippines about one year ago that much of this information emerged. Rene Salazar, a veteran farm organizer and now also a biotech researcher, sat dumbfounded in an agricultural biotechnology conference as the Philippine Under-Secretary for Science and Technology casually reported that the country's first bill to allow the patenting of life forms had passed third reading in the Lower House.
The Act, to allow the patenting of asexually reproducible plants, offered industry a great deal. First, there was no need to work - no inventive genius was required. A company could merely 'discover a plant in a cultivated field and - so long as they were first to the patent office - obtain exclusive monopoly ownership over it. As Salazar said, 'The bill rewards craftiness not creativity'. Second, uniquely under Philippine law, anyone else using the patented plant could be criminally liable. In industrialized countries, patent violations are for the civil courts and the onus and cost of patent protection falls on the company that profits from the patent. Not so under the proposed Philippine law. A company need merely go to the police and charge someone with unlawfully using their variety, and the criminal courts would takeover at taxpayer expense.
Rene Salazar, who also works with the South East Asian Regional Institute for Community Education, was furious: 'Maybe a third to half of the plant varieties on government recommendation lists are either chance mutations or the product of informal community breeding programmes. A Pioneer or a Sandoz company can walk into a farm community, take plant samples, patent the most interesting ones and then throw the community in jail if they continue to use the plants they themselves created.' Within 24 hours, Salazar and a coalition of peasant and environmental organizations had united with scientists to protest against the legislation.
On the other side of the Pacific in California it took leukemia patient John Moore a little longer to organize his protest. Moore is venting his spleen over the doctors and the UCLA hospital who claim to have 'invented' his spleen cell-line when they removed the cancerous organ during surgery in 1976. Mr Moore - or at least parts of him - were patented.
By the mid-1980s, UCLA had passed the patent to a small Boston biotech 'boutique' known as the Genetics Institute which in turn passed on exclusive monopoly rights to Sandoz, the giant Swiss chemical transnational that - because it ranks in the top echelons of both drug and seed companies - so worries Rene Salazar. En route, Moore's doctor, David Golde, and the hospital picked up two and a half million dollars in royalties and 75,000 shares of stock.
Moore's problems are not unique. About the same time in France, a widow whose husband died of testicular cancer, attempted to retrieve some of his semen from the sperm bank. The bank demurred, claiming exclusive rights to the semen. French courts sided with the woman.
Moore also sued for property rights - but lost. Sandoz's lawyers argued that private (patient) ownership over all body materials would send biotech research costs through the ceiling and deny new discoveries. Moore claimed that his rights had been violated and that no-one should own any parts of him but himself. Further court actions are expected.
Be it plants, fungi or people parts, all the new biotech patents spell money. The biotech body tissue trade is substantial - earning an estimated $2.2 billion in the US last year alone. Recently, a congressional investigation showed a 300 per cent increase over five years in medical schools seeking patents on products drawn from human materials.
What upsets Moore most is that Sandoz could take him to court for selling his own cells to other companies. At least in the US it would be a civil action - but the sad truth remains that not everything inside John Moore is necessarily John Moore's anymore.
In fact, all of John Moore may be up for grabs at the General Agreement on Tariffs and Trade (GATT) talks in Geneva. Buried amidst discussion of European Community agricultural subsidies lies an almost unreported demand from the US, backed by Australia and Japan, that the Uruguay Round should treat intellectual property as a potential barrier to international trade: if the Philippines or Brazil fail to offer US companies the same level of patent protection abroad as they expect at home, then this constitutes a barrier to trade.
According to US trade representative Carla Hills, US companies lost around $60 billion in royalties in 1986 alone, mostly to Third World patent pirates ripping off pharmaceutical patents, textile trademarks, and book and cassette copyrights. Even GATT officials have difficulty taking the US accusations seriously. Were the figures true and the royalty charges levied on the South as Carla Hills demands, the surcharge would double total Third World debt repayments each year.
Trading on life
But the GATT proposal has still wider implications. Says Hills, there should be 'no exclusions' on either the forms of intellectual property or the subject-matter to be patented. In other words, plants, animals, micro-organisms, John Moore's spleen cells and even John Moore himself along with all his products and processes would be patentable. Failure to permit such patents would expose a country to trade retaliation from other GATT members. According to GATT, life is a trade issue.
Although daunted by the reach of the US demand, the EC, Nordic countries and Switzerland have called for the patenting of plants and micro-organisms, leaving it open as to whether or not animals should be patentable. Only Norway, in its written submission to GATT Director-General Arthur Dunkel, has flatly rejected the patenting of human beings.
Most countries in GATT, have over-looked the fact that any acceptance of the patenting of any life-form will inevitably lead to GATT rules for the patenting of all life-forms. The legislative history in industrialized countries shows clearly that holding rights over plant varieties leads to exclusive monopoly rights over micro-organisms and then animals. Asked directly whether the US really wanted to include human beings in its patent proposal, a Washington official giggled and admitted that Hills and Company simply could not find a way to exclude humans.
In fact, it is probable that no one in GATT is interested in patenting whole human beings.3 So why not develop wording that does exclude people?
In biotechnology, where fish and insect genes are inserted into crop plants, and human genes are put into mice, pigs, sheep and goats, the 'natural' barriers between species and biological kingdoms are broken down. Life is homogenised. If human beings were excluded from patentability, would the DuPont mouse - the first patented animal - be unpatentable because it contains a human gene? Would pharmaceuticals derived from human tissue be unpatentable? How many human genes can science insert into pigs before they start to read the menu? How many genes can be patented in a human being before the human being is patented?
Faced with these rather ridiculous but real imponderables, the US Trade Representative has opted not to attempt a definition of a human being but to call for no exclusions in the hope of avoiding the entire moral debate.
For Third World delegates in Geneva, the message should be clear: if it is technically impossible to isolate human beings from patentability then new transgenic technologies also make it impossible to isolate plants both from animals and microbes. It is equally impossible to legally isolate 'discovered' from 'invented' biological materials or 'wild' from 'cultivated' materials. To accept the patenting of any life form in GATT is to ultimately accept the patenting of all life forms - including the whole vast biological diversity of Third World fields and forests.
The South is only belatedly becoming aware that the so-called 'raw-material' of the Gene Revolution are the microbial, plant and animal genetic resources abundant in tropical and sub-tropical states. GAIT represents a grab for patent control over the sovereign and human intellectual property rights of the South.
Pat Roy Mooney is a researcher for The Rural Advancement Fund International (RAFI), which campaigns about genetic resources from bases in the US, Canada, Australia and Norway. Together with Carey Fowler, Mooney received the 1985 Right Livelihood Award - the Alternative Nobel Prize - for his work on genetic resources.
1 It is the same with the US National Cancer Institute which is well into a five-year drive to gather more than 1500 medicinal plants from tropical forests and peoples. All the plants are patentable - far from the people who first found them.
2 According to RAFI.
3 In May 1990, RAFI was shown a US State Department memo which pondered the embarrassment that exists in GATT, of holding a position that does not expressly exclude human beings from patentability.