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BODY AND SOUL: Price of Biotech (Issues patenting life)
For your info - P. DInes
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From: Richard Wolfson, INTERNET:rwolfson@concentric.net
To: Patricia Dines, 73652,1202
To: info@natural-law.ca
Date: Sat, Apr 19, 1997, 11:31 AM
Subject: biotech article
BODY AND SOUL: The Price of Biotech
By Philip L. Bereano
Special to The Times
(first of two parts)
The Seattle Times, Sunday, August 20, 1995, p.B5
In December of 1994, Seattle businessman John Moore traveled to Europe. He
went to Brussels to visit the European Parliament; he visited Munich and
took in the European patent office; and in Geneva, by the shores of the
lake, he spent several hours at the World Intellectual Property
Organization. These are not usual stops for a traveler's itinerary, and
indeed, John Moore was not on vacation. He was in Europe because of what
happened to him in 1976 when UCLA doctors removed rare "hairy cell
leukemia" cells from his spleen and then developed a line of cells which
produced valuable antibacterial and cancer-fighting proteins.
Of course, Moore had signed a surgery consent form which included fairly
standard language allowing research to be
done on his discarded tissues. But after the doctors received a patent on
the so-called "Mo cell line" in 1984, Moore sued, alleging at the very
least he should receive a share of the profits (potentially several billion
dollars) on the grounds that-if one wanted to view it in such a light-every
individual has a property right in their own body parts. In July of 1990
the California Supreme Court denied the existence of such a right of
control over our own bodies (although it allowed John Moore to sue his
doctors for a breech of fiduciary duty in failing to inform him of the
potential commercial value of his cells). John Moore, as the only human
known to have been patented in whole or in part, went to Europe last winter
to lobby. The European Parliament was considering whether or not to accept
a Directive from the Executive branch of that multi-nation political entity
which would have allowed the patenting of life forms, including human
parts.
And, in an historic vote, on March the 1st of this year, the Parliament
rejected such patentability by 240 to 188. At the same time that the
biotech industry is rushing ahead with myriad patent applications, the vote
in Europe is yet another example of widespread concern among the general
public regarding the commodification of life forms. Patenting, formerly a
sleepy preserve of corporate engineers, individualistic sole inventors, and
exceptionally high paid lawyers, is becoming a subject of general political
discourse.
Background
Despite the fact that Thomas Jefferson was the master of a large plantation
and thus a breeder of plants and animals (as well as being a scientist and
inventor himself), there's no reason to believe that when he drafted
America's first Patent Act in 1793 that he intended it to cover life forms.
Jefferson was quite clear, however, that he viewed the concept of patent
monopolies as a necessary evil which could be tolerated in order to insure
that "ingenuity should receive a liberal encouragement." Patents were also
intended to foster the widespread dissemination of technical information
which is "new" and "useful" and "not obvious" to practitioners in the
field.
Jefferson was not one to confuse means and ends, and there is no doubt that
the patent system was envisioned only as a means to increase the knowledge
available to the public and secure good fortune to the Commonwealth. Among
the over five million patents which have been issued under Jefferson's
system, there have obviously been a number which have significantly spurred
the American economy.
But for almost 200 years the idea that general patents could cover life
forms was viewed as ridiculous; indeed, Congress refused to include
coverage for plant varieties under these statutes and enacted specific (and
much more limited) protection schemes for new plant varieties in
mid-20th-century. In 1971, the General Electric Corporation and one of its
scientists, Anand Chakrabarty, filed a patent application for bacteria
which had an enhanced propensity to digest oil hydrocarbons.
Although getting bugs to eat oil seems like a neat trick, the Patent Office
initially rejected the application. The case was appealed to the courts.
The Supreme Court had recently issued an opinion noting that "we must
proceed cautiously when we are asked to extend patent rights into areas
wholly unforeseen by Congress." However, it ruled in 1980, in a 5 to 4
opinion by Chief Justice Warren Burger, that the oil-eating microbe was not
a product of nature but a "human-made invention." Whether it was alive or
inanimate was not seen as the major criterion. The dissent by Justice
Brennan, urged judicial restraint and noted that it was up to Congress, not
the courts, to decide whether the scope of patentable matter should be
extended.
All nine of the justices agreed that this was a narrow ruling, and the
commentators were also essentially unanimous in the view that patentability
of microbes might be one thing but monopolizing plants and animals (no one
was even thinking of humans at that time) was beyond the pale. With no
further guidance from Congress or the courts, the US Patent Office has run
off on its own expanding the Chakrabarty ruling in many directions. In
1985, it decided that plants, seeds, and plant tissues could be patentable,
and in 1987 all "multi cellular living organisms, including animals" were
held patentable (this last ruling by the Patent Commissioner, by
specifically excluding human beings from patentability, did acknowledge
that there was an ethical issue involved in the patenting of life). The
Thirteenth Amendment (outlawing slavery) may be seen as a bar to the
patenting of humans; nonetheless embryos and fetuses and human body parts
all appear capable of being monopolized under these Patent Office rulings.
And now there are even attempts to patent whole human beings and their
genomes.
The Geneticization of Society
Although there has always been a recognized public policy exemption to
patentability (for example, nuclear devices are not patentable, under the
Atomic Energy Act of 1954), one has to ask what ideological currents are
gaining strength in America to permit such an unusual notion as the ability
to have exclusive ownership of life forms. Genetics is increasingly being
presented to the American public as a mysterious realm of knowledge which
is now coming under human control, presumably for our economic and social
betterment. "We used to think our fate was in the stars. Now we know, in
large measure, our fate is in our genes," is the way this ideology has been
formulated by James Watson, the Nobel laureate who participated in the
discovery of the DNA double helix. This world view-which magnifies the
claims to power by scientists and is trumpeted in the media-ignores the
complex interactions within an organism and between an organism and its
environment, as well as the social and political and economic factors that
contribute to shaping life patterns.
But the biotechnology industry has succeeded in presenting itself as the
next shining hope for America's economic
development (along with infomatics--the computer/information industry).
Together with other high tech industries, it has succeeded in making some
substantial alterations in public consciousness, laws, and programs which
directly benefit its own interest. These include such elements as: the
enactment of the Technology Transfer Act enabling private entities to apply
for patents on research which was largely funded by the government; trade
negotiations such as GATT (the main purpose of the last set of
negotiations-called the "Uruguay round"-was to bring global harmonization
to specific areas of trade including "intellectual property rights"); tax
write-offs and other governmental subsidies; and the Biodiversity
Convention, which is concerned with the international legal aspects of
genetic resources (the raw base of power over these important resources can
be seen in the definition of the owner of genetic material-for example, a
tropical medicinal-as either the country in which the species grows
naturally or the country which houses a germ bank to which the germ plasm
was taken and stored artificially).
Other societies have more explicit public policy examination of the
patentability of life forms and products. For example, the patent laws in
Brazil, India, and Argentina forbid the patenting of pharmaceuticals on the
grounds that drugs are of such great importance that no one should have the
right to monopolize them. Columbian researcher Dr. Manuel Patarroyo
recently gave the World Health Organization exclusive royalty-free rights
on an antimalaria vaccine he developed; "We wanted to do this for the
benefit of humanity," he explained. The European viewpoint is greatly
influenced by the Napoleanic concept that denies patentability to subject
matter which is contrary to ordre public, (fundamental moral precepts
essentially acknowledged universally). In Europe, too, the more explicit
acknowledgment of a colonialist past may play a role in shaping public
consciousness; according to a Dutch member of the European Parliament from
the Green Party "Ninety percent of the genetic resources which are used in
our agricultural production come from the Third World. We have never asked
if we ought to pay anything for them. And now for the biotechnology
industry to demand monopoly property rights over them is utterly
unjustifiable. Whether wild species or crop plants, genetic resources are
the common heritage of humankind. All farmers must be guaranteed free
access to them."
Why Say No
According to GRAIN (Genetics Resources Action International), a European
nonprofit organization promoting sustainable agriculture throughout the
world, there are "12 reasons to say no to life patents."
With patenting:
*Farmers would be obliged to pay royalties on every generation of plants
and
livestock they buy and reproduce for production purposes;
*Breeders will no longer have free access to germ plasm for developing new
varieties of plants and animals;
*Consumers are likely to end up paying higher prices for food, medicine,
and other products;
*Public research which is paid for by all of us will be privatized by a
few;
*Market structures will undergo increased concentration;
*Genetic diversity will be diminished, as monopoly control over genetic
resources severely restricts their circulation;
*The food supply will be threatened by monopoly control over genetic
resources, farmers' harvests, and processed foodstuffs;
*The Third World will increasingly lose access to scientific information
and technology transfer, and will see their freely donated biological
resources privatized by the societies of the developed world;
*The concept of human rights will be eroded as human beings, and parts of
their bodies, become the exclusive property of patent holders;
*Animal welfare will become a nostalgic notion of the past, as patenting
stimulates the genetic engineering of animals to serve as industrial
systems for the production of food and medicine no matter how they suffer;
*Society's relationship to nature will be reduced to a commercial
enterprise based on exploitation and profit; and
*Ethical and religious values based on respect for life, creation, and
reproduction will be subverted by a reductionistic and materialistic
concept.
John Moore's journey successfully limited the heedless patenting of life
forms in Europe. On this side of the Atlantic, however, more people need to
insist that our policy makers address the social and ethical issues raised
by the biotech industry's inappropriate attempts to monopolize life.
- --END COPY--
Philip Bereano is Professor of Technical Communication in the College of
Engineering of the University of Washington
_________________________________________________________
Richard Wolfson, PhD
Campaign to Ban Genetically Engineered Food
Natural Law Party
500 Wilbrod Street
Ottawa, ON Canada K1N 6N2
Tel. 613-565-8517 Fax. 613-565-6546
email: rwolfson@concentric.net
NLP Website: http://www.natural-law.ca
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