Should life forms be patented globally?
ON 16 JUNE, 1980, the US Supreme Court made a historic five to four ruling, the reverberations of which are still being felt. The court held that an industrial patent could be issued to a genetically modified organism. The patent was granted to Dr Ananda Chakrabarty, an employee of the General Electric Co, for a bacterium that could degrade oil slicks more efficiently because of the additional genetic material Chakrabarty had introduced into it.
Till this controversial ruling, it was commonly believed patents could not be granted to living things, though some patents had been sanctioned earlier for substances like yeast. It was felt that human intervention could not be possible to the extent required to allow a living thing to be considered a human invention. However, the US Supreme Court ruled otherwise.
Subsequently, patents were granted to a genetically modified plant in 1985; a multi-cellular organism -- an oyster -- in 1987; and to an animal -- a mouse -- in 1988. Since 1987, the US has maintained that patents would be granted for all non-human, non-naturally occurring life forms. While human beings are specifically excluded, human parts or human genes are not. The first animal patent -- a mouse -- contained a human gene that made it more susceptible to cancer. Patented human genes include genes for the production of interferon, insulin and the blood-clotting agent -- tissue plasminogen activator. The practice has been justified on the grounds that the patented human genes were in a form purer than available in nature.
The monopolising of human genes reached absurd lengths last year when patent applications were made for 350 gene fragments sequenced using an automatic process by a researcher working for the US National Institutes of Health (NIH). In February 1992, NIH again filed patents for 2,375 gene fragments, leading to widespread protests from scientists in the US and abroad. James D Watson, director of the US $3 billion Human Genome Project, resigned in protest. (For more information on the controversy, refer Down To Earth, 31 May, 1992.)
The vital question -- who owns the human genome? -- was first raised in 1984 when John Moore, a leukaemia patient, sued his doctor at the University of California for patenting a cell line developed from the spleen removed from his body. Six years later, the Supreme Court of California decided Moore had no rights on any benefits accruing from the patent since he did not stake claim at the time of giving away his spleen.
Patents are monopoly rights granted to inventors for a definite period of time, which allow the holder to prevent others from imitating his/her invention. Patenting was an institution of feudal Europe and maintained even when feudal privileges were abolished following the rise of capitalism, on the grounds that it acted as an incentive to manufacturers to reveal techniques otherwise maintained as trade secrets.
Around the time of World War II, another form of intellectual property rights was introduced, which were called plant breeders' rights. These rights, unlike patents, extended only to a definite plant variety and allowed farmers to multiply seeds for their own use under "farmers' exemption" and other plant-breeders to use new varieties in their breeding work under "breeders' exemption". However, it prohibited other smaller seed companies and farmers from multiplying the seeds for sale.
Potent for living things Today, industrial patents are being awarded for plants and other living things as well. Patents can be granted not to just one plant or animal variety but even to a whole class of plant and animal varieties, if it contains the particular patented gene. Therefore, the rights of a patent holder could extend to all varieties of a plant or animal which exhibit a particular characteristic such as, for instance, resistance to a common disease. It would also prevent farmers from saving one year's seed for next year's sowing and plant-breeders from using the new patented variety in their work for the duration of the patent.
Faced with the application of industrial patents to plants, the earlier system of plant-breeders' rights has also undergone modification and increased the extent of monopoly rights till today, there is very little difference between patents and plant-breeders' rights.
Both forms of intellectual property rights, whether as plant-breeders' rights or patents, undermine the individual farmer's rights to the seeds. While plant-breeders' rights take away the farmer's right to sell the seeds, patents take away the right to reuse the seed. The resulting dependence of the farmer on multinational corporations leads to further distortions in research priorities. These absurd monopolies in life forms have been opposed by both people and companies who have spent many years breeding plants and improving agriculture. Many seed companies have been taken over in the acquisition moves that have swept the seed industry in the last decade, and which favour the interests of multinationals such as Ciba-Geigy rather than those of farmers.
In 1980, American professors Stanley Cohen and Herbert Boyer were awarded an important patent for a basic biotechnological invention -- a process for splicing genetic material and introducing it into foreign genetic material. The patent has wide applications and since then, many patents, both in USA and Europe, have been given for biotechnological processes and for products produced by new processes.
India and other developing countries are being pressurised into adopting intellectual property norms, similar to those prevailing in the industrialised world, through the Dunkel draft proposed as part of the GATT (General Agreement on Tariffs and Trade) negotiations and USA's Special 301.
This will have serious repercussions in these countries because most of them are dependent on northern inventions. The new intellectual property rights regime would prevent them from adapting new varieties and processes for their needs. For instance, India would be greatly handicapped if it did not have access to foreign germplasm.
As a reaction to industrialised countries freely collecting genetic material from the developing world, there was a move in favour of farmers' rights as being superior to breeders' rights as the latter only recognise breeders who work in formal systems of innovation. On the other hand, farmers have contributed to the development of new varieties of plants by experimenting in the field. The concept of farmers' rights was introduced in recognition of this informal system of innovation. In 1989, the Food and Agriculture Organisation (FAO) formally recognised both farmers' rights and breeders' rights.
Farmers in the developed countries did not gain much from this. The international community was recognised as the repository of farmers' rights and was supposed to develop plant breeding capabilities in the developing countries. However, this did not take off, mainly because contributions towards this goal were to be voluntary.
Possible solutions
A possible solution to the problem is that genetic resources be considered national property and industrialised countries be asked to pay compensation for any genetic material they obtain from developing countries and use in biotechnological innovations. But this will legitimise the monopolising of life forms and processes taking place today.
Another approach would be to defend genetic resources as common property and, at the same time, prevent others from monopolising the products of these genetic resources.
So long as industrialised countries continue to maintain and strengthen their system of monopoly rights, it becomes necessary for developing countries to establish exclusive rights over their genetic resources. But this should only be a tactical position.
There is global concern for the loss of biodiversity (or the world's life forms). Yet, the intellectual property rights regime represents a major threat to biodiversity. Regulations like plant-breeders' rights result in more uniform varieties being propagated since multinationals tend to promote more widely adaptable varieties. The pity is this will be done at the expense of the world's varied genetic resources.
---Usha Menon is a scientist at the National Institute of Science, Technology and Development Studies, New Delhi, and is a member of the National Working Group on Patent Laws.