Blueprints for patenting
Friday November 17, 2000
There is a countervailing international agreement to the World Trade Organisation's on patenting and intellectual property rights (The price of life, November 15). The convention on biological diversity is legally binding on 179 governments. Forty of these are now in Neuchatel, trying to agree the text of a subsidiary instrument, the international undertaking on plant genetic resources for food and agriculture (IU).
This IU has the potential to exempt an entire category of the earth's "commons" - the plant life forms used to provide food security - from privatisation and corporate control. It could restrict the "biopiracy" of which John Vidal wrote eloquently in your Patenting Life supplement (November 15) and continue to allow the free exchange, sale and communal ownership of life-sustaining genetic materials. The IU could also ensure that more than half a million samples of crop, forage and agroforestry species taken from farmers and held in trust in gene banks will be safeguarded in the public domain.
Yet the negotiations this week have become highly strained, with some
countries refusing to accept those articles which would, in their view
"conflict with" (ie limit) the dominance of intellectual property
rights rules under the WTO. ITDG, its partners from developing countries and
smallholder farmers have lobbied strongly for the IU negotiations to be
completed swiftly. Developing nations, including the Africa Group, desperately
want it. They know that 90% of the seeds which create food security for their
people are currently exchanged between farmers, not traded by seed companies.
But countries whose corporate industries benefit from WTO rules are holding the
process back. It is urgent that the UK drives the EU into a positive, united
position, which could be crucial to securing agreement.
Intellectual property rights, especially patents, enable global knowledge cartels to coordinate and solve an enforcement problem. Any cartel member faces the problem that another may cheat and try to take more of the market than agreed. Emerging multinationals in the early part of the 20th century turned to intellectual property rights and complex licensing arrangements based on those rights to co-ordinate and enforce global cartels. Patent licences enabled them to group together to fix prices, limit production, divide markets and exclude competitors.
The problem of cartel formation by companies previously involved in
chemicals or pharmaceuticals and now expanding into biotechnology continues.
Witness the anti-trust litigation by US and international farmers against
Monsanto, Dow, Du Pont, and Novartis for forming a cartel in the GM corn and
soy-bean markets. Unfortunately, the alleged benefits of the biotech revolution
will be delivered to consumers at great cost. Intellectual property rules in
many ways represent the ultimate conspiracy against the public.
Tim Radford (Patenting Life) poses the question whether two separate groups could patent the same piece of genetic information for two different functions. He rightly points out that if so, there could be no question of anyone "owning" a gene. This issue was addressed over five years ago in an acclaimed report by the Commons' science and technology committee. We recommended that only a combination of a gene and a known utility which is novel should be patentable, and that a combination of the same gene and a further novel utility should also be patentable.
Regrettably neither the present nor the previous governments have acted on
The UK patent application you chose to illustrate how scientists
"patent life" describes Michael Antoniou as one of the inventors -
the same individual who you invited to warn us of the dangers of genetic
interference in the agricultural industry during your online GM food debate,
some months back. Do some experts believe the genetics revolution is bad for
plants but OK for us humans?
You are right to highlight the ethical and moral unacceptability of patenting genes and life. However, your example, of which I am one of the inventors, lays no claim to ownership of any gene. It describes a gene expression system for the industrial production of pharmaceutically important proteins and therefore does not constitute a "patent on life". Such molecular genetic tools are equivalent to building a machine out of metal. You cannot patent the metal because it's a natural product, but you can patent the machine, as it is clearly a new "invention".
Patenting a new gene per se, especially if its function is unknown, is wrong
because it is the common property of everyone. It is important to distinguish
this from therapeutic and diagnostic tools derived from genetic materials.