Patenting life is owning life
In this article, Tewolde Berhan Gebre Egziabher exposes the absurd result that has arisen from the decision to extend the law of patents to living organisms. The person who discovers a gene is, in effect, conferred ownership of it via a patent! In short, patenting life is owning life.
THE system of patenting was developed for machines. It is being forced onto living things. Most of the problems of patenting life arise from this fact. Imagine that I invent a new kind of carburettor that economises on fuel. If I patent it, is the rest of the car also patented? When I patent an organism because I claim to have invented a gene, do I patent also the whole organism? Conversely, can I patent a whole organism because I claim to have been inventive in the context of one of its genes, or one of its traits? If I have invented a carburettor, would I not be able to scale it up or scale it down to make it fit a lorry or a motor cycle? When I do this, would I not know beforehand what the effect would be on the lorry or on the motor-cycle? When I introduce a gene into one organism or another, do I find that its impact is the same as I predict it to be in both organisms? I will explore these and raise a few other questions in the next few minutes.
The topic given to me is 'Patenting - Owning Life'. I agree with the topic: patenting life is owning it. But whilst I create my carburettor out of materials that have nothing to do with delivering measured amounts of petroleum, I introduce genes or traits into an organism only if they already exist as such in another organism or organisms. Can I patent a car because I fit it with a different kind of carburettor from another car? Therefore breeding and genetic engineering reorganise something existing; they do not create anything de novo. Considering achievements in reorganising as if they were inventions, is a distortion of meaning, with the aim of distorting reality. This distortion is made for a specific purpose, for controlling living things in the same way as one can control machines one has invented. Those who patent living things will claim that they are not distorting anything but that they are merely asking for a recognition of their own creativity that has gone into making the living thing what it actually is. But do they create the living thing? They do not. Even they would only claim that their creativity is reflected in the living thing, not that they have made it. Doublespeak? What creativity can contribute to something already created? What would creativity mean then? If they want reward, they could ask society to develop a system appropriate for their role in the improvement that comes from reorganising. Society pays for many of the services it gets. A service given does not have to be a creation in order to be rewarded.
When they claim creativity in relation to life, one of the activities they point to is the extraction of bio-molecules. Why else would a chemical extracted from a living thing be patented? The extraction and identification of a molecule is a discovery, not a creation, not an invention. We are told that discoveries are not patentable. Or are they? I have now discovered this great city of Brussels. Can I patent it? I would enjoy royalties from the European Union coming to fill my pockets!
The use of a biochemical is often the same as what is traditional to local communities somewhere. If a company patents that traditional use as its own invention, is it not then plagiarism? Is the patent office that has allowed it then not legalising robbery? Does an act stop being a crime merely because the law allows it to be committed? Did not Europe and North America set the Nuremberg trials to punish acts that had been legal in the Nazi regime?
The use of a biochemical might also be new, discovered by those who want to patent it. Is that new use an invention, or a discovery? Should then the use, or the chemical itself, be patented? Which is currently being patented in the various industrialised countries, the bio-molecule or the use? Should access to that patented bio-molecule then remain open, and making and using it for purposes other than the patented one be allowed? What is the case in Europe? I realise that once a chemical is available to the public, it is not easy to restrict its use. Is it then fair to deny other uses in order to protect one use? Should we err in favour of society as a whole or in favour of one particular legal or natural individual?
Extracted bio-molecules can often be synthesised and thus be made artificially in a chemical plant. Will the synthesised molecule, then, have been invented? Should it then be patented? I have no problem with patenting the particular process used for the synthesis. But I would find it impossible to accept that the synthesised molecule is considered invented. This is because I would then have to assume that the synthesised molecule is different from the natural one. But even the so-called inventor would not accept this distinction: the rationale behind synthesising something is the making of a substitute.
In my view the more audacious claim for patent is that for the organism. If the nucleic acid sequence that corresponds to a trait were invented and it did not exist in nature in any species, such a claim could be understood. But, in fact, we know that a trait is often the result of an interaction among many genes or nucleic acid sequences. That is why we can never tell for sure what a newly introduced gene will do in an organism. We only introduce it and find out the effect. This fact alone would have made such a claim dubious.
But even then, one should not claim to have invented the gene or the trait, let alone the whole organism. Do laws allow the patenting of only specific traits? Only nucleic acid sequences? The whole organism? What about simply crossing individuals to create a new individual with a new combination of nucleic acid sequences and traits? Is the organism then an invention? Or do the nucleic acid sequences have to be introduced only through recombinant DNA technology to make the organism an invention? Or will simply identifying the nucleic acid sequences that determine the traits make the organism an invention? The organism is the same in all of these cases. In which case what has genetic engineering or DNA sequencing got to do with patenting?
It is true that recombinant DNA technology combines genes that would not have combined through natural processes. But the genes are not invented. Why do we say the organism is invented? Would it not suffice to say that it is the process that has been invented? Conversely, when we find an organism, it is with all its nucleic acid sequences inside it. Why can't we patent it, if all that genetic engineering does is recombine existing DNA sequences? I hear that such patents on whole organisms unrelated to specific nucleic acid sequencing are allowed in the United States. Are such patents then not understandable?
Would allowing a gene or a trait to be patented not make the other genes and traits in the whole organism unavailable to others? Shouldn't I, looking for ways of using that organism without the patented trait or gene, be allowed to use it? Do I have the right to excise or splice out the patented gene or trait and use the rest? It may be argued that I could use other organisms in that species that do not contain the patented traits or genes. What if that organism with those patented genes or traits is the only surviving variety of the species? In this age of extinction, this is not unlikely. What if there are other genes or traits that occur only in that variety with patented genes or traits? This is a very likely scenario. Access to that variety could then be continually denied by patenting traits or genes every time an existing patent is about to lapse.
If we use the determination of the nucleic acid sequence constituting a gene as a criterion for patenting, and I understand that this is the case, how would we know that the sequence is unique to the organism being patented? The number of species on earth is estimated to be 10 to 60 million. So far, we know the nucleic acid sequences of all the genes only for one species, the bacterium Escherschia coli. Assuming that the patenting of a nucleic acid sequence can be allowed only if it is new to life, which would make it a genuine invention, could we ever be certain that a nucleic acid sequence which we find in an organism is really new to life? Obviously not. If we allow patenting for a mere determination of nucleic acid sequences, how will we cope with the sequences which are the same but are in different species?
Need for another system
Patenting seems totally inapplicable to life. If we want to reward researchers in the life sciences, we must find another system.
If we continue with the distortion of the meaning of invention, we do not know where we will end up. I wonder how many of you have heard of Mr Moore of the United States of America whose liver has been patented. He went to the hospital. They took out a piece of his liver and they cultured it. They patented it. He claimed that they could not patent his liver, because it was his own. I am told that the judge said that since it is outside of him it is not his and it can be patented, i.e. it is invented. But that piece of liver is the same whether inside or outside Mr Moore. The judge did not dare say that that part inside him is also invented. But how long will it take for the continuing distortion of inventing to accept that the piece of liver inside him is the same as that outside him, and that, therefore, it is the patent holder's invention? Suppose I buy the patent on Mr Moore's liver, and suppose I also patent his blood in a similar manner, and I want my liver out of him in the style of Shylock. Even Shakespeare's defence of not allowing me to spill blood would not prevent me. I will spill my blood and take my liver, and I will still walk away, possibly claiming my royalties on your use of my Brussels! - (Third World Resurgence No. 106, June 1999)
(Dr Tewolde Egziabher is the General Manager of the Environmental Protection Authority in Ethiopia. At the Biosafety Protocol negotiations, he is the Chairperson of the African group of delegates and a prominent spokesperson for the Like Minded Group which comprises almost all developing countries.)