A Background To Patenting Of Life

By Sean McDonagh SSC

Patents give an exclusive right to an inventor to make or sell an invention for about 20 years. To be patentable an invention must be novel, inventive and serve some useful purpose. Patents have been around since the fifteenth century but until 22 years ago these criteria excluded living organisms. These were always regarded as discoveries of nature, and therefore unpatentable.

In 1980, this all changed. When Ananda Chakrabarty won a US Supreme Court case allowing him to patent a bacterium he had genetically engineered to digest oil, the Chief Justice declared that the ‘relevant distinction is not between animate and inanimate things but whether living products could be seen as human-made inventions.’ This decision heralded a new era in which living organisms could be patented.

Genetic diversity

Genetic diversity is at its richest in tropical countries, which are estimated to contain over 95 percent of the world's genetic resources. In what the corporate world calls 'bioprospecting' - and others call 'biopiracy' - scouts are sent to these areas to seek out valuable organisms or plants, often drawing upon the wisdom of indigenous and local peoples. They then take samples back to the laboratories where they isolate active ingredients or genetic sequences and patent them as their own inventions. Communities can end up having to pay for the right to use something that was previously part of their legacy. The biotech industry argues that this knowledge only becomes valuable once money has been spent on research and commercial products have been developed.

Genetic engineering

Genetic engineering juggles pre-existing components of life. No new gene or genetic material is ever created, just different combinations. By 1985 the US Patent and Trademark Office allowed genetically modified (GM) plants, seeds and plant tissue to be patented. By1988 animal patenting was permitted. Today human gene sequences, cell lines and stem cells are being patented.

The floodgates were opened

The floodgates were opened and by 1990 50 percent of plant patent applications in Europe were coming from just eight transnational corporations (TNCs), among them Du Pont, Monsanto, and Aventis. These companies were pushing the boundaries of patent law even further, staking territorial claims to cover entire species of plants and animals.

The UN Convention on Biological Diversity, ratified by 183 countries and in force since 1993, recognizes the sovereignty of states and communities over their genetic resources. However, the Trade Related Intellectual Property Rights agreement (TRIPS) of the World Trade Organization (WTO) does not.

Since 1995 a key goal of WTO has been to remove barriers to 'free trade.’ Under TRIPS, countries are obliged to bring their patent laws into line with the industrialized nations by extending them to include living organisms or by setting up equivalent systems of intellectual property rights. TRIPS does not require biotechnology companies to ask for prior consent before accessing biological resources, nor does it demand that patent holders share the benefits with the people or lands from which the genes originated. A WTO meeting in November 2001 in Doha said that exclusive rights provided by patents are an important incentive to the development of new drugs. The United Kingdom Government supports the current WTO patent agreement and has so far resisted calls by developing countries to have it reviewed.

Privatising the Commons

There is a similarity between what happened with the Enclosure Acts in Britain in the 18th century, and what is happening today with TRIPS. Canadian Pat Roy Mooney, a veteran campaigner against life patenting, points out: ‘Rich landlords who orchestrated the enclosure movement argued that the commons (land for the use of everyone) must be privatized so that they could take advantage of the new agricultural technologies and feed growing urban populations. In the same way, and with the same arguments, as the Enclosure Acts used to drive rural societies from their ancestral lands (and rights), TNCs are now pursuing another Enclosure Act – the intellectual property ('IP') system. It is privatizing the intellectual commons and monopolizing new technologies based on these commons. ‘What has been happening since the latter part of the 20th century is a new, more invidious form of colonialism. Many of the agribusiness, pharmaceutical and biotech corporations involved in this enterprise have their headquarters in the USA. They can bring enormous pressure to bear on politicians on the national and global stage to design a regulatory regime that promotes their products.

For thousands of years the San bush people of southern Africa's Kalahari desert chewed hoodiacactus stems to keep hunger at bay. The drug company Pfizer now owns the rights to an anti-obesity drug, based on the hoodia, which could be worth millions.

There have been 13 patent applications on the eucalyptus tree, an evergreen mainly native to Australia and with medicinal properties. One applicant has been the chemical company ICI.

’Oncomouse’ was a transgenic mouse and the first mammal to be patented in 1988. A breast-cancer gene was spliced into its makeup to aid cancer research.

Challenging the commodification of life

Life, which was once considered sacred and a gift from God in almost all the religions and cultures of the world, is now perceived by some as human invention – a collection of genes and chemicals that can be engineered, bought and sold by a patent holder. Life will only have value in so far as it generates a profitable return on investment for large companies. Such a reductionist, mechanistic and materialistic concept of life is at variance with the tenets of all the major religions and with the spiritual traditions of tribal peoples. A nineteenth century speech, attributed to the native North American Chief Seattle, bemoaned Western arrogance that thought we could, ‘buy or sell the sky or the warmth of the land.’ For Chief Seattle, every part of the earth is sacred.

The US Supreme Court's view of life also differs radically from the way life is understood, revered and cherished in the Judeo-Christian tradition. The first line of the Bible insists that everything was created by a living God: ‘In the beginning God created the heavens and the earth (Gen 1:1). The text is very clear that all living beings, including human beings, are creatures of God.

The first account of creation goes on to teach that all beings have their own inherent value. This dignity derives from the fact that they are created by God (Gen 1:12, 19-25). In the second account of creation the man is given the privilege of naming the animals
(Gen 2:19-20). The text recognizes that all creatures, including humans, have a common origin. They are created from the soil. God invites the man to care for the animals with a sense of responsibility and good stewardship. While this gives humans dominion over
other creatures, it is not an arrogant dominion with the right to oppress and exploit. Rather, it is supposed to be patterned on God's own care and sovereignty, enhancing God's creation. This is expressed in Psalm 72:4-6 where the righteous king combines concern for the poor and care for the creatures of the earth.

Creation: an all - encompassing activity

In the Judeo-Christian tradition, creation is an all-compassing activity. It is not a once-off action in the distant past by a mechanistic God who immediately abandons the world to its own devices. God is perceived as living in each of His creatures in the here and now. God holds together the web of life and leads all creation into the future (Psalm 104). Our world is evolving and has its own unique processes. The Bible does not share the reductionist myopia of the US Supreme Court that saw life as an isolated entity and as a product of human industry. Patenting is a fundamental attack on an understanding of life as interconnected, mutually dependent and a gift of God given to all creation. ‘Oh, come to the water all who are thirsty; you who have no money, come! Buy corn without money and eat, at no cost, wine and milk.’ (Isaiah 55:1). It opts instead for an atomised, isolated understanding of life. It is also a variance with the Judeo-Christian conviction that freedom, openness and possibility are the hallmarks of life in God's creation.

Limits on the uses of the natural world

The Bible recognizes that humans are companions and stewards of other creations in the community of life (Gen 2:15). In Gen 2:15-17 God settles the man in the garden and invites him to cultivate and care for it. The text goes on to place certain limits on the man's use of the natural world. Yahweh God gives him this admonition: ‘You may eat indeed of all the trees in the garden. Nevertheless, of the tree of knowledge of good and evil you are not to eat, for on the day you eat it you shall surely die’ (Gen 2:16-17).

The Bible is very critical of those who, puffed up with arrogance, refuse to recognize that they are dependent on God. In the story of the Tower of Babel (Gen 11) humans repudiate God's sovereignty and attempt to storm heaven under their own steam. It would not be misrepresenting the meaning of its text to interpret any claim to own life as usurping the Divine prerogative as the author of life.