8 Things You Should Know About Patents
THIS MONTH'S THEME
Dinyar Godrej gives the lowdown on some underhand activities.
1 What's it all about, Alfie?
In 1980 a paradigm shifted. Or rather it collapsed altogether.
Ananda Chakrabarty won a US Supreme Court case allowing him to patent a bacterium he had genetically engineered to digest oil. Suddenly a legal construct that had been designed to protect inventors' ideas from appropriation jumped over the not inconsiderable fence that separates the inanimate world from the sentient and animate. This however didn't seem to exercise the presiding judge unduly. He declared that the 'relevant distinction is not between animate and inanimate things but whether living products could be seen as human-made inventions'.
And there's the nub. Reproduction aside, can human beings really claim to create life? Chakrabarty himself said that he 'simply shuffled genes, changing bacteria that already existed - it's like teaching your pet cat new tricks'.
Genetic engineering involves the juggling of pre-existing components of life. No new gene or genetic material is ever created, just different combinations. So if a genetically engineered organism reproduces, it does so of its own accord following a natural process. How then can it be owned?
In order to be patented an invention must fulfil three criteria - it requires an inventive step (which is not obvious to someone skilled in the field), it must be novel and it must be useful. But patents on life usually fail the first two, if not all three. It would appear the criteria have been downgraded in many instances to simply possessing the technology to tamper with life and the ability to describe the extent of the tampering.
Chakrabarty's oil-chomping bacterium opened the floodgates in the US. Five years later the US Patent and Trademark Office allowed genetically modified (GM) plants, seeds and plant tissue to be patented. By 1987 animal patenting was permitted. Today human gene sequences, cell lines and stem cells are allowed (see box).
What all of this means is that corporate interests (and university research departments which are increasingly corporate funded) can corner life forms for the lifetime of a patent (usually 20 years) and have a monopoly over their exploitation.
2 What's fair game?
Patents on life actually represent ancient Western obsessions - conquest and colonization. Except here science, in the deep pocket of corporate finance, seeks to subdue the natural world and venture boldly into the 'interior spaces' of genes and cell lines.1 Human beings have no rights to their own genetic heritage - after all, they did nothing to exploit their usefulness, claim some scientists.
On 26 June 2000, the world learnt that a draft of the entire human genome had been completed independently by two competing bodies. The publicly-funded Human Genome Project aimed to keep the data in the public domain, whilst the company Celera Genomics sought to license use of its data for a fat fee. The public consortium had been pushed into a race to complete the draft by Celera's bid. As John Sulston, who led the British arm of the Human Genome Project put it: 'We were in a position of responsibility... without us, the human genome would be privatized.'2 But PE Biosystems, the company that launched Celera, also had other fish to fry. They were the suppliers of the sequencing equipment required by both sides. Within a year of Celera's formation, PE Biosystems had made sales of a cool $1 billion.
Proprietary databases of genetic information, whether of humans or of plants and animals, seek to enclose knowledge that belongs to us all. Currently just describing genetic information and suggesting a use for it is enough for the grant of a patent not just on the information, but on the genetic material itself and any future uses of it. Patents on human genetic material number in their millions - the human genome is already covered several times over by them, with numerous patents granted for the same stretches of DNA.3 The variety of patents on life puts Pandora's box in the pale - human cells, cell lines, gene sequences and fragments, plant genes, naturally occurring micro-organisms, transgenic plant and animal varieties, cloning techniques and cloned animals, stem cells and techniques to isolate and grow them are all up for grabs. But much simpler theft is involved as well.
Natural resources known to indigenous peoples for centuries are easy plums for the biotechnology companies to pick. A remedy from India, where I grew up, comes to mind. The neem tree's anti-bacterial and insecticidal properties had over 80 patents slapped on them by eager US and Japanese corps, although at least one has been overturned. But these properties aren't news to anyone. My mother would mix neem twigs and leaves in with her store of wheat to keep the bugs off. Neem soap has been going for years - especially popular with pustular teenagers on the subcontinent. And a good chew on a revoltingly bitter neem twig substitutes for brushing one's teeth for many a poor Indian.
The easiest steal is just to claim a plant variety as your own. In 1999 Larry Proctor, owner of a seed company POD-NERS LLC, did just that, winning a US patent on Enola beans of a certain shade of yellow. POD-NERS then began suing Mexican bean exporters to the US for patent infringement on the yellow variety. The beans started becoming too hot to handle and it was the Mexican farmers who grew them, as they had done for generations, that lost out. The patent is being challenged by an international agricultural body, but a decision could be a while yet - POD-NERS' wily lawyer has added 43 new claims to the original patent.4
The Majority World is estimated to possess 95 per cent of the world's genetic diversity, yet profits from it will almost exclusively be made by Western corporations - no wonder they call it biopiracy. A 1996 Christian Aid report claimed biopiracy cheated poorer countries out of $4.5 billion a year. Today bioprospectors working for biotech firms, pharmaceutical and agribusiness giants are off to the far corners of the earth hoping to come back with the (living) goods.
It seems suspiciously like the old colonial story of glass beads for gold.
4 Corporate muscle
Biotech companies are being snapped up by giant 'Life Science' corporations with fingers stuck firmly in various pies - food, seeds, chemicals, pharmaceuticals. In a gorge-fest of takeovers and mergers, fewer players are running bloated operations the size of national economies.
This is particularly pronounced in the food and seed industry where the stakes are the highest at around $2,000 billion a year - hey, everyone's got to eat. The ultimate goal is nothing short of the takeover of the world's food supply through the means of patented seed which cannot be saved by farmers and must be bought anew each year. This is achieved by using dubious technologies like Monsanto's Terminator which made plants bear sterile seed and by enforcing contracts and prosecutions of farmers who don't comply. In 1998 the Co-President of Monsanto's agricultural division said: 'This is not just a consolidation of seed companies, it's really a consolidation of the entire food chain.'5
It's the topsy-turvy world of capitalism all over again - its supporters claim that it endows humans with freedom and ownership, whilst the truth is that it is free to exploit and that it marks off for the few what was previously owned by many. This is an ethic that is profoundly at odds with the indigenous custodians of biodiversity who are often treated as thieves by corporations when they ask for common property to be restored. The continual extension of corporate ownership that patenting allows shows that the real aim has nothing to do with guarding innovation, and everything to do with territoriality.
5 World TRIPS and beyond
A combination of a lax patenting regime and regulatory bodies infiltrated by industry-friendly employees has made the US a haven for biotech activity. A US Patent Office employee once famously remarked that they would allow a GM mouse to be patented as long the 'inventor' could claim a use beyond cat food.
The rest of the world was a little less enthusiastic about patenting life, with developing countries being, rightly, the most sceptical. Here the World Trade Organization (WTO) lent the biotech industry a shoulder to cry on by allowing the major players to formulate the Trade Related Intellectual Property Rights Agreement (TRIPS) which came into force in 1995. TRIPS aims to force all countries to take on board a menu of biotech patents and 'harmonize' their national patenting regimes accordingly - the aim is to make the world follow the US example. Serving Western multinationals under a cloud of development rhetoric, TRIPS has done little for useful technology transfer, but much in terms of criminalizing people using their communal knowledge and legalizing corporate theft.
But already a plethora of further measures has come into play showing industry dissatisfaction with the pace of TRIPS. In 1998, a European Union biotechnology directive that allowed the patenting of genes became the most intensively lobbied agreement ever. The transnationals also got behind North-South bilateral trade treaties to push further for patents on life. By July 2001, 150 Majority World countries were affected.6 In June this year there was upoar in the Philippines when it was revealed that a USAID-funded think-tank was behind a controversial Plant Variety Protection Act that strengthened the grip of American corporate interests over the country's farmers.
The latest news is that the UN's World Intellectual Property Organization seems to be taking up big business's cudgels by laying down the foundations for a single patent system for the entire world.7
6 Hindering research
Today speculative patents (where the future applications of the patented thing or process are yet to be determined) are commonplace. Only 1 patent in 14 ever gets commercially exploited, but the knowledge behind them all is effectively blocked. Research institutions that would normally be loath to patent are doing so defensively in order to prevent the corpocrats stealing their ideas. Patents are being granted on discoveries that would scarcely be possible were it not for the freely available research of countless others. As Michael Ashburner, one of the contributors to the Human Genome Project puts it: 'One of the defining features of science is that it is public knowledge. Only if scientific knowledge and the methods used are freely available, can the cardinal principle of the reproduction and testing of experiments take place.8
This is leading to a gridlocking of knowledge which is often derived from public funds in the first place. Nowhere is this more evident than in medicine. Roger Tatoud, a doctor of cell and molecular biology, writes: 'Ironically, charities are the main source of research funds, and projects whose results are patented and developed by the pharmaceutical industries are then sold back to the patients who may even have contributed to the initial funding of the work.'9
7 The road ahead
When it comes to the future, the crystal ball clouds over. We are looking at a regime that will increase the concentration of wealth in a few greedy hands; which threatens to lock farmers into bioserfdom; which will lead to genetic erosion as 'preferred' gene combinations are increasingly encouraged not just in plants but in animals and humans; which unleashes constructed GM organisms with the most unlikely combinations of genes into a profoundly evolutionary natural world; which will increase the chances of biopollution as engineered genes could cross species barriers with unknown effects. We are looking at a world where animal welfare goes to pot as chickens are engineered to have oversized breasts and countless animals are sacrificed in an effort to make them 'grow' remedies for humans. Science's embrace with business will get positively carnal and healthy competition in the research arena will be replaced by unhealthy suspicion.
Patent regimes could loosen to the point of complete flaccidity. Melbourne patent lawyer John Keogh took out a patent for a 'circular transportation facilitation device' otherwise known as the wheel to prove this point. A Californian company is trying to copyright a DNA sequence, as copyrights last longer (100 years) than patents. Companies could see all barriers to their worst instincts lifted. Take Japan Tobacco, which makes three of the world's five biggest-selling cigarette brands, and which is now trying to develop a vaccine using patented genes that are active in lung cancer cells.10
Patents are already moving to the atomic and subatomic level. Purified elements from the Periodic Table would be prime candidates for patenting. Contrast this with the Curies' stance, when they chose not to patent their discoveries of radium and polonium. Just one US scientist has more than 50 patent applications on the nitric oxide molecule.
8 Another way to go
Patents have made science increasingly profit-focused, a debasement which has led to calls from some scientists to do away with them altogether. The swift pace of technological change today means the 20-year lifetime of a patent makes the 'invention' more or less obsolete by the time the patent expires. Historically, numerous countries had legal safeguards against restrictive patents in the fields of food production and medicine - the main territory of today's patents on life. In a rapidly globalizing world economy, the monopolies offered by patents are just too great ever to benefit ordinary people.
Hope comes from numerous quarters. From within science, where several geneticists are adopting a more holistic approach that doesn't reduce all living beings to the sum of their genes. They could help end the genetic gold rush that is already beginning to stall as companies are seeing their patents lying idle, producing no worthwhile results.
From Africa comes the most coherent challenge to patenting life within TRIPS, which is increasingly being echoed by other Majority World countries. Farmers are showing their strength through massive protests in many parts of Asia. Half a million Indian farmers turned up with neem branches to give the WTO the message.
The most coherent position has been of various groups of indigenous people who have argued that the natural world belongs to us all, that their knowledge of it is collective and cannot be privately owned, that though they ask for compensation from those who wish to access their resources for profit, they remain steadfastly opposed to patenting. Recently a $2.5 million bioprospecting project of the US government exploring Maya medicinal plants had to be abandoned after stiff opposition from the people of Chiapas, Mexico.
A wide range of civil society organizations are taking their vision of a patents-on-life-free future to the Rio+10 environment conference in Johannesburg this month in the form of a 'Treaty to Share the Genetic Commons'.
Until recently the groundswell of public opposition has focused on GM technologies rather than the patenting aspect which is at their heart and goes much further. What a glorious opposition it has been, uniting people of all political persuasions to stand firm against charges of philistinism and foolishness levelled at them by vested interests. The same public effort now needs to inform the No Patents on Life campaigns. It may be an old-fashioned idea, but life is meaningless unless it is shared.
P.S. In 1421 Filippo Brunelleschi refused to reveal a vessel he'd invented unless the city of Florence granted him a patent on it. Although this went against the usual practice of openly sharing innovations, the authorities gave in. The Badalone was unveiled... and sank on its first trip on Lake Arno. Florence didn't issue another patent for a long time. Technological progress continued regardless.11
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