Patent a plant? Americans do, irking shamans
The shamans were unhappy. Querubin Queta Alvarado and Antonio Jacanamijoy Rosero, spiritual leaders of their Amazonian tribes, stood incongruously in the headquarters of the US Patent & Trademark Office wearing traditional garb - beads, feathers, and teeth. But under their arms were official protest documents prepared by their attorneys.Skip to next paragraph
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The shamans say the Patent Office has helped steal their most important and sacred cultural property, an Amazonian plant called ayahuasca. So in March they came to Washington to request that US authorities review their decision to award an American researcher the patent for the plant.
"Some indigenous people say the patenting of this plant is the equivalent of somebody in their group patenting the Christian cross," says David Rothschild of the Washington-based Coalition for Amazonian Peoples and their Environment. "It's also offensive to them that someone in the US is claiming the intellectual property of the knowledge of this plant, which they see as being theirs."
The ayahuasca case is just one in a series of international controversies triggered by the awarding of US patents on living matter - from naturally occurring plants and genetically engineered mice to the human cell line of an indigenous man living in Papua New Guinea.
America is unusually liberal in determining what is eligible for patent ownership. Many countries do not award patents on living things, except crop strains. But under US patent law almost anything that has been modified or manipulated by human invention is eligible for consideration - including microbes, plants, animals, even products created from human tissues, cells, or DNA. Supporters say such "life patents" are essential to encourage the development of new crop varieties, livestock, pharmaceuticals, and medical procedures.
But a number of interest groups oppose such patents on moral, ethical, or social grounds. Most argue that life patents effectively steal intellectual property from their rightful owners, or that the commodification of life - especially human genes and tissues - has disturbing implications that society is profoundly unprepared to tackle.
"Human genes evolved over hundreds of millions of years. They're shared property," says Jonathan King, a molecular biologist at the Massachusetts Institute of Technology in Cambridge. "For a company to claim a patent on a gene sequence is straight theft of the most profound kind."
But US companies commonly patent gene sequences, human cell lines, even entire, genetically modified organisms. Others have received patents for allegedly novel uses of naturally occurring plants, often after learning of their uses from people in developing countries.
Thomas Jefferson excluded living creatures when drafting the country's first patent laws. Under a 1930 congressional act, exceptions were made from seed and plant breeders, but patents on other life forms were not allowed. But in 1980, the Supreme Court voted to allow the patenting of a genetically modified bacterium.
"That decision says that any machine, manufacture, composition of matter, process, or improvement that involved the intervention of mankind ... was patent-eligible," says Stephen Kunin, deputy assistant commissioner for patent policy.
The Supreme Court identified only three exclusions: abstract ideas, laws of nature, and natural phenomena. While the court did not exclude patents on human beings, they are currently excluded under a 1981 Patent Office policy memorandum. "That's where we still stand today," Mr. Kunin says.