Stop
Patenting Life
In this
chapter I will argue that, even if one accepts that the risks posed by
genetically engineered products to human health and the environment are not
serious enough to warrant banning them on ethical grounds, there are sufficient
ethical grounds for opposing the patenting of living organisms. Over time, the patenting scramble will
remove many life forms from the domain of the commons where they have provided
many services for humans and other creatures. Under a patenting regime these
life forms will now become the private property of Northern transnational
corporations. Life will only have value in so far as it generates a profitable
return on investment for large companies.
The debate is timely because the World Trade Organization planned to
monitor how signatories of the WTO were implementing Article 27.3(b) Trade
related intellectual Property Rights (TRIPs) Agreement at the WTO Ministerial
Meeting in Seattle at the end of November 1999. Many feared that a global
regime of patenting will fill the coffers of rich Northern Transnational
Corporations and impoverish the poor, especially in the Third World.
Life, which was once
considered sacred and a gift from God in almost all the religions and cultures
of the world, is now seen as a human invention; a collection of genes and
chemicals that can be engineered and bought and sold by a patent holder.
Such a reductionist,
mechanistic and materialistic concept of life is at variance with the tenets of
all the major religions. The speech
attributed to the North American Indian Chief Seattle bemoaned Western
arrogance that thought we could "buy or sell the sky or the warmth of the
land". With patenting, human
beings claim to have invented plants and animals and to have exclusive control
over them. If the scramble to patent
living forms gathers pace across the society it will undoubtedly devalue the
meaning of life. Unlike Chief Seattle
for whom "every part of the Earth was sacred", no part of the Earth
will be sacred in the future. Furthermore it could well mean that within a few
decades "the entire human genome... would be owned by a handful of
companies and governments” [1].
Privatizing the Commons
The similarity between what
happened with the Enclosure Acts in Britain in the 18th century, and what is
happening today with global Trade-Related Intellectual Property legislation,
has not been lost on commentators. Pat Roy Mooney points out that the
"rich landlords who orchestrated the enclosure movement... argued that the
commons 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 - to privatize the intellectual
commons and monopolize new technologies based on these commons. The Landlords
have become the Mind Lords. In the post-GATT world of new biotechnologies,
these are also the Life Lords”[2].
What is happening in the latter part of the 20th century is a new,
more invidious form of colonialism. The
goal this time is not just to conquer new lands like Vasco da Gama, Columbus,
Magellan or Cromwell did or to lay claim to gold, or precious stones, it is to
colonize life itself. Many of the
agribusiness, pharmaceutical and biotech corporations involved in this
enterprise are larger financial entities than the average nation state. They
can bring enormous pressure to bear on politicians on the national and global
stage to design a regulatory regime that promotes their products. Since most of the multinationals have their
headquarters in the U.S. they have persuaded the U.S. government to write to Third
World countries warning them that unless they stop importing generic drugs the
U.S. will withhold special trading privileges [3].
The Rational behind
Patenting
The rationale behind
patenting is the desire to reward and compensate an individual for time and
expense involved in developing an invention.
The individual is normally granted monopoly rights over his/her
invention for between 17 and 20 years. The patent holder can prevent other
people from making, using or selling the invention unless they pay a license
fee or royalty on any commercial application derived from the invention.
Three criteria are required in order to obtain a patent on an
invention which can be either a material product or a process. It must be new or novel; it must involve a non-obvious inventive step and,
finally, it must be useful and have a
commercial application.
The first criteria would
seem to rule out patenting for living organisms. The geneticist or biotechnologist does not create de novo genes, cells or organisms. They identify, isolate and modify these
entities, which is a very different operation from creating them. Many people
would suggest that the analogy between a chemist patenting the elements of the
periodic table and a geneticist patenting genes is appropriate. Jeremy Rifkin
states that "no reasonable person would dare suggest that a scientist who
isolated, classified and described the properties of hydrogen, helium or oxygen
ought to be granted the exclusive right, for twenty years, to claim the substance
as a human invention” [4].
For this reason patents should not be given for living organisms. Other
mechanisms ought to be developed to protect the legitimate financial interests
of those who invest in biotechnology products or procedures.
It is important to remember
that patent laws were framed in an industrial context and therefore are more
suitable for machines rather than knowledge. One of the first recorded patent
was in Venice in 1474. It granted ten years privilege to the inventors of new
arts and machines. Though a patent law appears in Britain in 1623 patenting did
not really come into force in that country until the 1852 reforms. In the United States for example patents
were granted on imported technologies without any proof of originality[5]. In the intervening centuries patents have
been applied for to cover objects, chemicals, designs and processes.
Until recent times patenting
laws differed from country to country reflecting the way in which different
cultures and political systems weighed up the often conflicting claims between
compensating the inventor and ensuring that the public benefits from the new
product. The pendulum normally tilted in favour of the common good of the
nation rather than towards securing the financial interest of the inventor or
the corporation. Most Third World
countries, for example, refused to recognize patents on food and medicine and
other basic products that are deemed basic human needs. When Alexander Fleming invented penicillin
at St. Mary's hospital in London in 1928, the British government decided that
this drug should not be patented because of the potential value to humankind [6].
Earlier patent
agreements began with the Vienna
Congress in 1873. This was followed by
the Paris Convention of the International Union for the Protection of
Industrial Properties. It was signed by 11
countries and was revised in 1911, 1925, 1934, 1958 and 1967. In 1886 the Berne Convention on copyright
was signed. It was updated in 1946. The Berne Convention recognised that
individual countries had particular needs and priorities and that these would
be reflected in national patent legislation.
It is worth remembering that in many industrialized countries like
France, Germany, Japan, Switzerland, Italy and Sweden patenting legislation
only appeared after the development of their own industries and that even after
signing the above conventions individual countries seldom enforced those
international agreements [7]. The development of the textile industry in
the United States in the early 19th century was based on patterns
and machines, which were developed in Lancashire. The Japanese textile industry followed this same route in the
early 20th century and its much-vaunted economic miracle in the
post-world war II period was based on innovative copying. At the end of the 19th century
Germany complained about the absence of a patent law in Switzerland and the
consequent theft of German intellectual property by Swiss firms, especially in
the chemical industry [8].
The first break with these
country-specific patent laws took place during the Uruguay Round of the General
Agreement on Tariffs and Trade (GATT) which was concluded in 1994. Under
pressure from its corporate sector the US and other Northern countries pushed
for "harmonisation" in the law affecting intellectual property right
across the world. It is worth
remembering that 70 per cent of US exports earnings are linked to patented
items, from AIDs drugs to Disney, McDonalds and Microsoft. The resulting GATT
Trade Related Intellectual Properties (TRIPs) obligated all GATT signatories to
adopt minimum intellectual property standards for plants, animals,
micro-organisms and biological material, including genes. Gradually the understanding that patenting
only applied to inanimate things and processes began to be eroded. It is no secret that the giant
agribusiness, Cargill, was largely responsible for drafting the Agreement on
Agriculture at the WTO[9].
The biotech industry, on the
other hand, claims that patents are necessary so that innovative, life-saving
technologies will be developed. Critics
counter that this argument has no historical support. In fact the opposite is
the case. Switzerland was an agricultural country, poor in natural resources
until the middle of the 19th century. Because there was no patenting law a small company copied the
aniline dyeing process which had been developed and patented in Britain. That company which later was called Ciba
developed into a major global enterprise.
In 1995 it merged with another Swiss company called Sandoz to form
Novartis. Ironically Novartis led the campaign in Europe which allowed companies to patent genes and
life. Companies often call for patents
to pay for innovation. Eric Shiff, a historian of economics, makes the point that no country has even
contributed “as many basic inventions in the field as did Switzerland during
her patentless period”. These
inventions include milk chocolate by Daniel Peter in 1875, chocolat fondant by
Rudolf Lindt in 1879 and powdered soup by Julius Maggi in 1886. Holland followed a similar path. In 1870 two Dutch companies Jurgens and Van
Den Bergh used a French patented recipe
to produce margarine. These later merged with the British company Unilever. This company is vigorously promoting
patenting legislation. Similarly Gerard
Philips began manufacturing light bulbs, invented by Thomas Edison. Schiff argues that on economic grounds it is
“difficult to avoid the impression” that the absence of patents “furthered
rather than hampered development" [10].
The Cambridge economist,
Ha-Joon Chang in his book Kicking Away the Ladder; Development Strategies in
Historical Perspective makes it
quite clear that history debunks the free-trade myth. He points out that
countries like the United States, Switzerland and Holland became rich on the
basis of protectionism and subsidies. Once these countries became rich they
began pressurizing poor countries to accept so-called free-trade and all its
accouterments, including a restrictive patenting regime. Ha-Joon Chang
maintains that these so-called orthodox policies have killed growth in many
Third World countries, especially in Africa and Latin America. In order to
stimulate growth the WTO ought to rewrite its rules, "so that developing countries can more actively use tariffs and
subsidies for industrial development" [11].
Furthermore patents enable companies to create a
monopoly on a product, permitting artificially high pricing. As a result drugs
and other procedures will be priced out of reach of poor people. Third World critics of the Western dominated
pharmaceutical industry point out that these corporations spend millions of
dollars researching profitable lifestyle drugs like Viarga but neglect the
diseases of the poor like malaria and tuberculosis, to mention just two.
The court case in South Africa where 40
transnational pharmaceutical companies took the South African government to
court to prevent the government importing
generic drugs which are needed in the fight against AIDs illustrates the
determination of TNCs like giant
corporation Glaxo-SmithKline to protect their patents at any cost. The usual
rationale of huge research and development costs that the companies give for
seeking patents did not pertain in this case since the medication was developed
in public institutions and has been leased to a pharmaceutical company. The disparity in costs were staggering. At present
ciprofloxican which is an essential medicine for AIDs sufferers costs
“South Africa’s public health sector 52p (sterling) per pill and the country’s
private health care providers more than £3 per tablet. If the new law is implemented, a generic
drug could be imported from India for 4p per pill [12].
Obviously access to generic drugs would be good news for the 37 million people suffering from AIDs in Africa
alone.
The court
action which was watched with interest around the world turned into a PR
disaster for the giant
pharmaceuticals. They were made
appear rapacious and greedy willing to put their profits before the well-being
of millions who are suffering from AIDs.
This greed was seen again in December 2001 when the Competition
Commissioner of the European Union, Mario Monti fined a number of
pharmaceutical and chemical companies
1.5 billion euros for price fixing and acting as a cartel. The Swiss
chemical company Hoffman-LaRoche was fined 462 million euros for conspiring to
fix vitamin prices. The controlling
power of transnational companies can be seen in the fact that this
extraordinary scandal did not make the front page or top story in the media. I
found the data in the Irish Times financial section, below the fold as,
the saying goes [13].
The double-standard in the
West’s approach to patented medicine
was once again revealed during the anthrax attacks in North America in October
2001. Fearing widespread anthrax attacks on the population of the US and Canada
the US considered breaking the Cipro patent and the Canadians actually did
break the patent in order to produce sufficient quantities of the drug. Many
Third World people ask is the health of white North Americans more important than the health and survival of
Africans afflicted with AIDs? The US has
been pushing the free-trade agenda because it benefits its transnational
corporations. When their interests are
threatened the US becomes very protectionist.
The 2002 Farm Bill gives subsidies in the region of $248.6 billion
dollars to corporate agriculture. This subsidy will have a very negative impact
on Third World agriculture.
As we saw above the parent companies of some of the
most pro-patenting companies in today’s world were against patenting. In the
mid-1800s the parent company of what later became Ciba-Geigy Ltd. was fighting
any attempt to establish patenting laws in Switzerland. There is a modern ring to their
arguments. They claimed that
"Patent protection forms a stumbling block for the development of trade
and industry...The patent system is a playground for plundering patent agents
and lawyers"[14].
The Biotech industry boasts that genetically
engineered rice could help prevent blindness among poor children. Millions of
public funding went into developing this technology which was hailed as proof
that biotechnology will help feed and supplement the diet of the poor who might
be lacking in Vitamin A. The
researchers Ingo Potrykus and Peter Beyer who developed the transgenic
beta-cartone enhance rice were so afraid of the complexities of patent
negotiations that they quickly signed the publicly-funded technology to
AstraZeneca (now Syngentia), one of the world’s largest agrochemical and
biotechnological companies [15].
Already there are some 70 patents on
the so-called “golden rice”.
Dolly
This is
already happening. The Roslin Institute that cloned Dolly applied for a broad spectrum patent which would give them
exclusive rights over all cloned mammals. Almost immediately they mounted a
legal challenge against researchers at the University of Hawaii who were
attempting to clone cows. Ian Wilmut and Keith Campbell claimed that the
researchers in Hawaii used cloning techniques that are covered in their patent
on Dolly [16].
Dolly was hailed by many as a new wonder.
Few commentators pointed out that it took 277 embryos to create her.
Many of the pregnancies failed. Some of the lambs were stillborn or died at
birth because they were unusually large. Then in 2001 we found out that Dolly is has arthritis at the relatively
young age of 5. Questions are being asked: was it the cloning process that gave
her a genetic defect?
In
February 2002 it was reported that researchers in Japan discovered that cloned
mice die prematurely. Scientists at the
National Institute of Infectious Diseases in Tokyo cloned 12 mice and compared
them with a control group that had been born through natural mating. In the initial period there was little
difference between the cloned and ‘natural’ mice. Each group seemed healthy and
put on weight. Within one year significant differences began to emerge between
the control group and the cloned mice.
A flaw in the mice’s immune system meant that there were unable to fight
off normal diseases. By the 311st day
the first cloned mice died. By the 800th day 10 had died. This meant
that 83 percent of the cloned mice had died as against 3 or 23 percent of the
control group. This experiment raises serious issues about the health and
longevity of cloned animals [17].
Diamond vs.
The Chakrabarty
The decisive
change in the push to patent living organisms began in the early 1970s. In 1971 Ananda Chakrabarty, a microbiologist
working for General Electric, used genetic engineering techniques to develop a
microbe that would help clean up oil spillage by devouring oil. Both the
researcher and the company applied to the US Patent and Trademark Office (PTO)
for a patent on the genetically engineered microbe. The Patent Office refused the application on the grounds that
life-forms could not be patented.
Chakrabarty appealed to the Court of Customs and Patent Appeals (CCPA).
To everyone's surprise the CCPA in a narrow three-to-two judgement reversed the
PTO decision and granted a patent for the oil-consuming microbe. The judgment
made it very clear that the rubicon, between the animate and inanimate nature,
had been crossed. It stated that, "the
fact that the mico-organisms are .... alive .....(is) without legal
significance" [18].
The saga did not end
there. The Patent Office challenged the
CCPA’s decision in the US Supreme Court. Before hearing the case the Court
advised the CCPA to examine a recent Supreme Court decision in the Parker v.
Flook case which stated that "the
courts) must proceed cautiously when we are asked to extend patent rights into
areas wholly unforeseen by Congress” [19].
Despite this caution the CCPA continued to uphold the patent. As a consequence
the Supreme Court was forced to address the issue whether life could be
patented or not in 1980.
Given the
Court's stance in the Flook case most observers expected that the patent
application would be refused. This did
not happen. In June 1980 the US Supreme
Court decided by a five-to-four majority that life was patentable. The ruling stated that the "relevant
distinction was not between living and inanimate things", but whether
living products could be seen as "human-made inventions".
In their judgement the
Justices argued that the larger question, namely, whether life might be
patented, should now be addressed by appropriate legislation in the US
Congress. This never happened so the
Chakrabarty judgement opened the floodgates for patent applications on living
beings.
One could not exaggerate the momentous nature of this decision. It
constitutes a break with the way most cultures have viewed life down through
the ages. The philosophical, ethical and legal bases on which the decision was
reached is at variance with most of the cultural and religious traditions of
the planet. Most cultures and ethical
traditions make a clear distinction between living and inanimate realities. The
Harvard biologist Edward O Wilson would go much further in bonding humans with
the rest of the animate creation. In his book Biophilia he argues that
during our evolutionary development we were hard-wired genetically to bond with
other species in the living world. In the Prologue he used a powerful metaphor
from the living world to illustrate the powerful attraction of other life
forms. We learn to distinguish life from
the inanimate and move towards it like moths to the porch light[20].
Nothing, and, certainly not the commercial demands of transnational
corporations, should be allowed to blur or eliminate that vital distinction
between life and non-life.
Furthermore,
patents are derived from concepts of individual innovation and ownership, which
is foreign to many cultures where sharing of community resources and the free exchange
of seeds and knowledge are promoted as crucial values. The concept of individual property rights to
either resources or knowledge is alien to many indigenous people. In a patent
dominated world it is easy to forget that European and US agriculture was
developed from plants and genetic resources freely imported from other
countries. If justice means anything
they should repay their "genetic debt" to the world [21].
The simple fact is that
Chakrabarty did not create "his" bacterium. As Key Dismukes, a former
director of the Committee on Vision of the National Academy of Science in the
US observed, he "merely intervened
in the normal processes by which strains of bacteria exchange genetic
information to produce a new strain with an altered metabolic pattern. 'His'
bacterium lives and reproduces itself under the forces that guide all cellular
life" [22].
Andrew Kimbrell believes
that the US Supreme Court's decision has "transformed the status of
the biotic community from a common heritage of the earth to the private
preserve of researchers and industry".
He points out that the ruling has "set the stage for increasing
competition among multinationals as they vie for ownership and control of the
planet's gene pool, patenting everything that lives, breathes, and moves" [23].
It is worth mentioning that
this is not the first time that the judiciary had put the interests of the
corporations ahead of those of the ordinary citizens. Fr. Thomas Berry, a
leading Catholic thinker on environmental issues, insists that "from the
beginning of the 19th century the legal profession and the judiciary
in America bonded with the entrepreneurs and their commercial ventures, even at
this early period, against the ordinary citizen, the workers and the
farmers" [24]. He goes on
to quote from a book written by Morton Horowitz, who occupies the chair the
History of Law at Harvard University.
In his book The Transformation of American Law 1780-1860, Horowitz writes that "by
the end of the 19th century the legal system had been reshaped to
the advantage of men of commerce and industry at the expense of farmers,
workers, consumers and other less powerful groups within society" [25].
Patenting life certainly
benefits the corporations and not the general public, either in the First or
Third World. Within a few short years
many genetically modified organisms including viruses, plants and animals have
been patented in the US. The genes that
are perceived to 'cause' many common
illnesses have either been patented or applications have been lodged for the
patent. Already Duke University has
taken out a patent on the Alzheimer's gene which they have licensed to Blaxo.
The National Institute of Health has applied for a patent on the Parkinson's
disease gene. Myriad Genetics which is
now owned by Novartis has applied for a patent on a cardiovascular disease
gene. Patent 5,633,161 on the melanoma
gene is owned by Millennium Pharmaceuticals. Even a gene associated with
obesity has now been patented by Millennium Pharmaceuticals and licensed to Hoffmann-LaRoche.
These and a host of other patents will now be enforced in Europe since Directive on the Legal Protection of
Biotechnological Inventions was passed by the European Parliament on May
12th. 1998.
The EU Council of Ministers
approved the Directive in autumn 1998. Fortunately, the Dutch Government
filed a nullity suit at the European Court of Justice against the Directive. Italy has also joined with the Dutch
in oppositions to the Directive. The Dutch challenge is based on a number of
reasons, among them, the fact that it violates the basic rights of citizens by
creating dependencies between patients
and single companies (patent holders).
The Italian Government
recognized that patents on living organisms are morally objectionable to many
people. Patenting promotes the view that life is a mere commodity. Most cultures and religions find this
repugnant, especially when it includes human life
Despite these challenges the
corporate world felt that it had a tough legal patent framework in place in the
US and Europe. As a result the number of applications for patents jumped
astronomically from 150,000 per year in the late 1980s to 275,000 today. In October 2000 there were patent
applications on 126,672 human gene sequences. By February 2001 the figure had
jumped a further 38 per cent to 175,624. The people who gain most from all of this are Northerners. For example, of the 26,000
patents applications filed to the African Intellectual Property Organisation
only 31 came from residents in Africa [26].
The Bible and Patenting Life
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.
Human beings have a special
place in creation, as representatives or viceroys of God ( Gen.1:26). They show
forth their dependence on God in the
way they relate to God, to each other and to the earth. In the initial covenant
between God and humanity ( Gen 1: 28-31) humans were not allowed to eat flesh (Gen 1. 29). Even after the flood,
when Noah was allowed to kill animals for food, there is a prohibition on
consuming the animal's blood Gen 9: 3-4. Blood, in the ancient Near-East was
considered to be the seat of life. The
Old Testament scholar Gerhard von Rad writes "even when man slaughters and kills, he is to know that he is touching
something, which, because it is life, is in a special manner God's property"
[27].
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). This inherent dignity of
creatures increases and intensifies the
higher one moves up the chain of being. In Gen. 1: 21-22 God blesses creatures that live in water and the birds.
In the second account of creation the man is given the privilege
of naming the animals (Gen 2: 19-20).
The text recognises that all creatures, including humans, have a common
origin. They are created from the soil.
God invites the man to name the animals and thereby incorporate these
creatures into the human environment.
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. 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.
Furthermore, in the
Judeo-Christian tradition creation is an all-encompassing 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. Right from the time of Origen there was
this understanding of creation as a continuing reality. God did not create ex nihilo but also creation was creatio continua. God is perceived
as living in each of His creatures in the here and now. In terms of the future God holds together
the web of life and leads all creation into the future (Ps. 104). In
the Catholic theological tradition "creation is not an artifact. It is a
gift, not of improved or altered being, but of being pure and simple"[28]
The Bible does not share the
reductionist myopia of the US Supreme Court that sees life as an isolated
entity and as a product of human industry. In
the Thomistic tradition all being is indebted to God for its being and
continuation. Underlying all action
in the world and human affairs is the is the God who keeps us in being and
enables our action[29].
A modern theologian like Jurgen Moltmann writes, "if we want to understand what is real as real, and what is living as
living, we have to know it in its own primal and individual community, in its
relationships, interconnections and surroundings" [30].
Patenting is a fundamental
attack on this understanding of life as interconnected, mutually dependent and
a gift of God which is given to all. (Isaiah 55: 1 Oh, come to the water all
you who are thirsty; though you have no money, come! Buy corn without money,
and eat, and, at no cost, wine and milk ).
It opts instead for an atomised, isolated understanding of life. It is
also at variance with the Judeo-Christian conviction that freedom, openness and
possibility are the hallmarks of life in God's creation.
The Bible also recognises
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. The Yahweh God
gave the man this admonition, “You may
eat indeed of all the trees in the garden. Nevertheless of the tree of the
knowledge of good and evil you are not to eat, for on the day you eat of it you
shall surely die”(Gen 2: 16-17).
But stewardship does not
mean that humans are inventors or owners of life or that they can dominate and
exploit everything in creation. In fact it challenges and repudiates that
view. God, and only God, is the creator
of life and all life, including humans, are dependent on God. The Bible is very
critical of those who, puffed up with arrogance, refuse to recognise that they
are creatures and, thus, 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. I think it would not be misrepresenting the meaning of
this text to interpret any claim to own life as usurping the Divine prerogative
as author of life.
Living
organisms are not merely "gene machines" to be manipulated and
exploited for profit. This is why after
the US Patent and Trademark Office patented the first animal in 1987 a group of
24 religious leaders issued the following statement:
"The decision of the US Patent Office to
allow the patenting of genetically engineered animals presents fundamental
dangers to humanity's relationship with the natural world. Reverence for all
life created by God may be eroded by subtle economic pressures to view animal
life as if it were an industrial product invented and manufactured by
humans" [31].
In his encyclical on social
justice entitled Sollicitudo Rei Socialis
Pope John Paul II interprets the
Gen 2:16-17 text as placing limitations
of humans' use of the natural world. He states that:
"the dominion granted to man by the Creator is not an absolute
power, nor can one speak of a freedom to 'use and abuse', or to dispose of
things as one pleases. The limitations imposed from the beginning by the
Creator himself and expressed symbolically by the prohibition not to 'eat of
the fruit of the tree' shows clearly enough that, when it comes to the natural
world, we are subject not only to biological laws, but also to moral ones,
which cannot be violated with impunity' [32].
I would argue that the
limitations referred to by the Pope include, the call to respect the genetic
integrity of other species, and they preclude any claim to ownership over life.
The Pope once again raised
the question of genetic engineering in his World Day of Peace message for
1999. He stated that, "recent developments in the field of
genetic engineering present a profoundly disquieting challenge. In order that
scientific research in this area may be at the service of the person, it must
be accompanied at every stage by careful ethical reflection, which will bring
adequate legal norms safeguarding the integrity of human life. Life can never
be downgraded to the level of a thing". But this is exactly what
patenting does; it denies the fundamental notion that life is primarily a gift
and treats it like an inanimate object.
The Pope returned to the
issue in an address he gave to the members of the “Jubilee 2000” Debt
Campaign. In the midst of a talk on Third World Debt he had this to say:
"The
Catholic Church looks at the situation with great concern, not because she has
any concrete technical model of development to offer, but because she has a
moral vision of what the good of individuals and the human family demand. She
has consistently taught that there is a 'social mortgage' on all private
property, a concept which today must also be applied to 'intellectual property'
and to 'knowledge'. The law of profit
alone cannot be applied to that which is essential to the fight against hunger,
disease and poverty.
Opposition to Patenting
Living Organisms
The opposition to patenting
living organisms has come from many quarters, including tribal and peasant
people, scientists and religious people.
The arguments against are based on economic, social, scientific and
ethical considerations. The Union of Concerned Scientists in the United
States, for example, has consistently opposed the patenting of living
organisms. They argue that patents make important products
more expensive and less accessible.
Sir John Sulston, the
British scientist who won the Noble Prize for medicine in 2002, is also opposed
to patenting life. Sir John exemplifies all that is best in traditional British
scientific endeavours. He worked in a
University where he was able to devote 30 years of his life to studying a
hermaphrodite nematode without having to seek corporate funding and consequently
respond to their agenda. His patient
research led him to discover how cells develop and die under instruction from
their genes. Anyone studying how
cancers develop needs this kind of accurate information. This explains why are
expert on nematodes shared the 2002 Nobel Prize in the field of medicine. In
collaboration with Bob Waterston in the US, Sulston promoted the publicly
funded and publicly accessible codification and sequencing of the human genome.
Writing in The Guardian Andrew Brown author of In The Beginning was
the Worm comments, that, "Sulston believes passionately that the
information on the genome sequence must be freely available and that it is
wrong to patent human gene sequences, both morally and scientifically. It is
morally wrong because human genes are discovered, and not invented, while the
patent on a discovery blocks all invention in that area. If you patent a
discovery which is unique, say, a human gene or even just one particular
function of a human gene, then you are actually creating a monopoly and that's
not the purpose of the world of patent. Indeed, the purpose (of patents) is to
cause inventors to compete with each to get better products. So mousetraps are
in one category, human genes are in another!' says Sulston" [33].
It was also clear to Sulston
that in order to achieve results in his work he depended on the collaboration
of other scientists. Sulston realised that he could not have made significant
breakthroughs in his field without building on the work of other scientists.
His studies of the worms cell lineage would not have been possible without the
very detailed physical map of the worm produced by other researchers. Brown
insists that, "There is no doubt that Sulston believes that DNA patents
are immoral. But he is just as keen to
argue that they damage science"[34]. Finally, Sulston has not become an
extraordinarily rich man like many other researchers in molecular biology and
genetics. He believes in working for the common good, the betterment of human
kind and the increase in knowledge that should be available to everyone.
Patenting life is not seen
so favourably in the South. Isidro Acosta, the president of the Guaymi General
Congress in Panama, was shocked and outraged when he heard that the US
government was attempting to take out a patent on a virus taken from the cell
line of a twenty-six-year old Guaymi woman in Panama. Acosta stated that "It's
fundamentally immoral, contrary to the Guaymi view of nature, and our place in
it. To patent human material .... to
take human DNA and patent its products .... that violates the integrity of life
itself, and our deepest sense of morality" [35].
Peasant farmers
are also opposed to patenting. At a
meeting of a network of peasant organisations called MASIPAG (Magsasaka at
Siyentipiko Para sa Ikauunlad ng Agham Pang-Agrikultura) on the island of
Negros in the Philippines in January 1999, 7000 people protested against the
patenting of life. They denounced the Intellectual Properties Treaty of the
WTO. In the following years MASIPAG produced pamphlets in English and various
Filipino languages opposing genetic engineering and patenting.
A similar meeting of 50
peasant, indigenous and environmental organisations took place in Quito, Equador
in January 1999 to review contemporary developments in the area of agricultural
biotechnology. On completion they
published the Latin American Declaration on Transgenic Organisms. The
document rejects genetic engineering and patenting. It states, "genetic engineering is a technology
driven by commercial interest. It is not necessary. It forces us to become
dependent on TNCs which control it, putting our autonomy to take decisions
about production systems and food security in real danger. In the field of
agriculture, especially, there are
traditional and alternative technologies which do not pose such risks and which
are compatible with the conservation of biodiversity" [36].
The South Asian
Network on Food, Ecology and Culture (SANFEC) organised a workshop on patenting
in Tangil, Bangladesh. The final statement on Intellectual Properties rejects
patenting. "South Asian communities
are historically premised on the deep sense of moral, religious and cultural
values. The region is inhabited by multi-ethnic, multi-religious and large
indigenous communities. All trees, crops, animals, birds, organisms, and soils
are an inalienable part of our worship, our rituals, our celebrations, our
joys, our culture of sharing and our loving affinity to each other. Our region
is replete with hundreds of thousands of sacred groves where trees and plants
are worshipped by people. We have a long history of spiritual and political
movements where Sufis, Saints and various bhakti traditions have fought to
preserve the integrity of Nature in her multiple expressions, including the
beauty of life forms.
Such gifts must be cared for and respected and only
then do we gain our moral rights to use them for our livelihood needs. The
human as omnipotent consumer, that owns, controls, mutates, displaces and
destroys the environment, through privatizations, colonizations and now through
intellectual property rights (IPRs) in life-forms, is totally against our
culture. We are strongly opposed to non recognition of the rights of other cultures
to live on their own historical premises and principles".
Some farmers in First World countries are also opposed to patenting. In Canada and the US Monsanto engaged the services of an investigative agency to gather information on over 1000 farmers that they consider are cheating on patented seeds [37]. The affected farmers have coined a new word ‘bio-serfs’ to capture the feudal relationship which now exists between many seed companies and farmers. It is little wonder that across the world patenting seeds and animals are now seen as a major economic, development and ethical issue.
Patenting will Hinder
Progress in Science and Medicine.
Opponents of patenting also
believe that a patenting culture will promote a climate of secrecy in science
and hinder the normal exchange of information that is essential in order to
promote scientific research. The
scientific information and the materials that are required for research will
become more expensive and difficult to obtain if one corporation owns a patent
on the material. This, in practice will deter rather than promote research.
With the passing of the Biopatenting
Directive in the European Parliament in May 1998, a patent owner can now decide who will be
allowed to use the gene or gene sequence for developing a diagnosis, therapy,
medicine or transgenic organism.
Therefore it is obvious that patenting will actually hinder research.
For example, recently a British and US team of researchers were working together
on isolating and decoding the gene for breast cancer. Once the gene was
isolated the US team patented it and effectively pushed their British
colleagues out of the race because the royalties for the patent were too high [38].
A research culture focused
on patenting will also mean that scientific research will no longer be
undertaken simply to increase our understanding of the world, to search for
truth or to promote the public interest. Even today it appears that scientific
research in genetics is driven more by the search for corporate profit and
patent control than by a concern for human or planetary well-being. Many companies are applying for patents to
scare off competition by “stalking out an area of research”[39].
Sheldon Krimsky of Tufts
University in Medford, Massachusetts, examined 789 biomedical papers published
by 1105 scientists based in Massachusetts Universities in 1992. In 34 per cent of the papers, at least one
of the authors stood to gain financially from the results they were publishing,
either because they held a patent, or were employed by a biotech company that
was exploiting the research. An even
greater cause for concern is the fact that none of the 267 papers, where the
author stood to gain financially from the research, mentioned that fact.
Krimsky only discovered the financial links by trawling through databases of US
patents and registers of corporate officers for the names of the first and last
name of the authors of the 1105 papers [40].
Julian
Borger writing in The Guardian from Washington stated that a poll of
American laboratory directors found that a quarter of them had received letters
from lawyers acting for biotechnology companies ordering them to stop carrying out clinical tests designed for
Alzheimer’s disease, breast cancer and an array of other disorders.
In January 2000 James Meek,
a columnist in The Guardian reported that "an American company
which has 'patented' two human genes for breast cancer screening is threatening
the work of 15 publicly funded British
laboratories that perform a genetic test for half the cost" [41].
So great is the perceived threat to medical research that a group of American
doctors and scientists have issued a protest saying: “The use of patents or
exorbitant licensing fees to prevent physicians and clinical laboratories from
performing genetic tests limits access to medical care, jeopardises the quality
of medical care and unreasonably raises its costs” [42].
In September 2001 thirteen
of the world’s leading medical journals, including the Lancet, The
New England Journal of Medicine and the Journal of the American Medical
Association, mounted a concerted attack on pharmaceutical companies,
accusing them of “distorting the results of scientific research for the sake of
profits”[43]. They claimed that drug companies “tie up
academic researchers with legal contracts so that they are unable to report
freely and fairly on the results of the drug trials”[44].
This is extraordinary and very worrying development in terms of public health.
It should be investigated immediately
by competent and well-resourced government agencies and the medical profession
itself. The chances of this happening in the present globalized world environment is close to zero. In today’s
world TNCs are kings who are regularly
wooed by governments and who dispense largesse to may doctors in the form of
free trips to international drug-sponsored conferences. This courageous intervention by the
reputable medical press is timely but, once again it received little widespread
coverage. This pressure by corporations
on researchers will further deepen the distrust that many feel about the
reliability of in-company research trials, where billions of dollars may either
be made or lost if a drug proves successful or has to be discarded.
Private Research Marginal to
Breakthroughs in Agricultural and Medical Research
The Biotech
industry would like the public to believe that they have funded the bulk of
medical and agricultural research and are, therefore, entitled to charge
patenting royalties. The reality, in
fact, is very different. Writing in The
Guardian (February 22,1999) Jean-Pierre Berlan, Director of Research at the
National Agronomic Research Institute (INRA) and Richard C. Lewontin holder of
the Alexander Agassiz chair of zoology and professor of population genetics in
Harvard refuted these claims. They stated that "we owe the unprecedented
increase in yields in the industrial countries, as well as the Third World, to
the free movement of knowledge and genetic resources. (Yields have increased
four and five fold in two generations, after taking 12 to 15 generations to
double and being no doubt unchanged for thousands of years before that.) The contribution of private research
has been marginal, including the US with its hybrid maize.
For example, in the course
of the 1970s, nearly all the hybrids in the US corn belt were the result of
crossing two public lines - from the universities of Iowa and Missouri. It is public
research and public research alone, that does all the basic work on
improving the population of plants on which everything depends. Research work
is being hampered by the privatisation of knowledge, genetic resources and the
techniques for their use. Tired of paying royalties on genetic resources that
were snatched from them in the first place, many countries in the Southern
hemisphere are now trying to stop their circulation.
In the wake of Thatcherism
and Reaganism the pressure to privatise public knowledge has gathered momentum. Within a few short
years the private sector has taken over public research. For example, less than six per cent of all
public sector patents were surrendered via exclusive license to private
companies in 1981. By 1990 the figure
had jumped to 40 percent and given present trends all the intellectual property
accruing to US universities and government agencies will be controlled by TNCs
on an exclusive access basis by the end of the century[45].
Most Research is Funded by
Taxpayers and Charities
In response to the 'No
Patents; No Cures' argument it is important to point out that much of the
improvement in biomedical knowledge and procedures has been funded by taxpayers
and charitable organisations. Vast amounts of public funds have been allocated
to cystic fibrosis and breast cancer research.
It will be ironic if public medical institutions will have to pay
royalties to biotech companies in order to use screening tests that were
developed using knowledge that was gained in these institutions.
Patenting
will Increase the Cost of Health Care
Daare
(Disabled Against Animal Research and Exploitation)
believes that the European Patent Directive will increase health costs and
place the discoveries of publicly funded research in the hands of private
corporations. In 1997 the Manchester Regional Genetics Centre received
a bill from a Toronto-based biotech company demanding a $5,000 licence fee and
a further $4 royalty each time the Centre uses a cystic fibrosis gene screening
test on which the Canadian company has filed a patent application. Before the European Parliament voted on the Biopatenting
Directive in May 1998 the Centre
paid no royalty since the patent operated only in Canada. Now existing patents
will operate within the EU. Since the Centre cannot afford such costs the
patients will suffer as a result.
The patent
application of the US Biotech company, Myriad, will touch the lives of a larger
segment of the population, especially women.
They have applied for a patent on the breast cancer gene BRCA 1, as well
as all therapeutic and diagnostic applications that result from the knowledge
of the gene. If this patent is granted
the company will be allowed to charge patients every time a diagnostic
screening is performed. At present it
costs the National Health Service in Britain £600 to screen patients for two
breast cancer genes BRCA-1 and 2 and £30-35 for each subsequent test. Myriad Genetics on the other hand charges
£1,500 to screen for the gene and £300 for succeeding tests.
Such costs
would be prohibitive and would restrict access to these tests to the
super-rich. Staff at the Regional
Genetics Service of Central Manchester Healthcare wrote to all the members of
the European Parliament in July 1997. In the letter they stated that patenting
genes would make, "the possibility of genetic testing for disorders such
as heart disease or breast cancer so prohibitively expensive it would be beyond
the scope of the NHS (National Health Service)" [46].
There is something very
cynical and immoral when tobacco
companies whose product causes lung cancer are now poised to make more money out of marketing future cancer
vaccines. Japan tobacco has already
paid millions of pounds to a biotech company called Corixa for an exclusive
licence to develop and market vaccines
aimed at the prevention of/or treatment of lung cancer. Dr. Helen Wallace of GeneWatch UK feels
that, “giving a tobacco company exclusive
rights to lung cancer vaccines is like putting Dracula in charge of the blood
bank” [47].
Patents will Promote
Unsustainable Agriculture
Patents
promote unsustainable and inequitable agricultural policies. A disastrous
decline in genetic diversity could result from patenting crop species. The
development of genetically uniform organisms would make it easier for
corporations to maintain their patent claims. Biotech companies holding broad
spectrum patents on food crops will encourage farmers to grow modified
varieties with promises of greater yields and disease resistance. However,
numerous examples world-wide show the "improved" crops have failed to
hold up to corporate promises, and led to the loss of the rich diversity of
traditional crop varieties.
The patenting
of seeds will give enormous economic
power to a small number of agribusiness corporations. They sell their wares on
the global market. It will not be cheap. The insect-resistant maize hybrid
produced by Pioneer Hi-Breed requires access to 38 different patents controlled
by 16 different patent holders [48].
In addition, farmers will be forced to pay royalties on succeeding generations
of plants and animals that they buy or produce. It will be illegal to save seeds from the previous harvest
without permission and payment. This
will make farmers totally dependent on transnational agribusiness
corporations. The impact on Third World
countries will be devastating. It will
lead to a further flow of financial resources from the South to the North. And,
in the process it will institutionalise
the dependence of Southern agriculture on Northern agribusiness corporations. The flow of scientific information and new
agricultural technologies will be concentrated in the hands of these
corporations. As a result, instead of
feeding the hungry in the South as the agribusiness corporations claim, the new
situation could create food shortages and famine.
Biopiracy
The patenting
of Third World genetic resources by First World corporations or institutions
represents theft of community resources. Much of the raw material used in
genetically engineered food and medicinal plants is found in Third World
countries. In recent years
biotechnology companies have been collecting this material, patenting their
products and in the process making huge profits. Even before the advent of
biotechnology Eli Lily was in a
position to make millions of dollars by developing a drug to treat some cancers
from a plant called the rosy periwinkle which is found in the rainforest
of Madagascar. In 1993 alone the
company made $160 million profit in sale but did not contribute one dollar to
Madagascar where the plant was found.