The Neem tree was in legal dispute between India, where it grows, and an American company that claimed a patent on one of the tree’s compounds, azadirachtin. Photo: Neem tree flowers by Oksana Hlodan.
Note: Because some of the information in this article may be outdated, it has been archived.
Genes for sale
Cells from a human spleen … mice that are genetically predisposed to get cancer … bacteria that can digest oil … an extract from a tree native to India … There are at least two features that these all have in common:
- they are derived from living organisms
- they all have been patented as “human inventions”
Rapid developments in biotechnology during the last decade have enabled corporations and scientists to alter nature’s handiwork for commercial profit. A major strategy for private exploitation in this area is to obtain the patent rights to an organism or its component parts. As these developments affect all of society, we need to decide whether any corporation, institution, or individual should have the right to private ownership of life.
Patents were historically developed to insure that inventors could share in the financial returns and benefits deriving from the use of their inventions. With the development of the modern corporation, patent rights were always assigned to the company rather than an individual. This gives the patent holder a form of monopoly control for 20 years from the filing of the patent, and creates a legal means of limiting competition. Private investors generally regard such monopolies as favorable to their interests, so in many industries patents aid in the development of new products.
The first patents on life
For over two hundred years living organisms have been excluded from patent laws; life forms were considered a “product of nature” and not a human invention. The non-patentable status of living organisms changed with the 1980 landmark Supreme Court case Diamond v. Chakrabarty. The court decided in a narrow 5-4 decision that a strain of bacteria that had been modified by the insertion of new genes was patentable because it was not naturally occurring. The foreign genes gave the bacteria the ability to break down hydrocarbons, and its “inventors” hoped it might be useful for cleaning up oil spills.
Industrial societies have always permitted ownership of individual animals. However, until recently no corporation, institution or individual could own the rights to an entire strain or species of organism, nor could they patent components of organisms such as cells, genes or proteins. All of these are part of our global living heritage. The granting of patents on microorganisms and increased pressure from the biotechnology industries began a “slippery slope” progression towards the patenting of more complex life forms.
Patents on life
- Patents on animal life: In 1988, a Harvard University biologist was granted a patent for a mouse that had been engineered for increased susceptibility to cancer. The “Harvard Oncomouse” became the first animal to be considered an invention by the U.S. Patent and Trademark Office. It established a precedent within patent procedures for patenting genetically modified animals. Although this research was intended to benefit human health, the question remains about the ethics of patenting complex living beings. The U.S. Congress has never explicitly addressed the question of whether animal genes and cells can be corporate property.
- Patents on human life: A most alarming aspect of patenting life is the patenting of human genes, cell lines and tissues. Corporate patent attorneys have lobbied the Patent office that these “products of nature” are patentable once they have been isolated to produce a form not found outside of a laboratory. For example, in 1976 a leukemia patient named John Moore had surgery at the University of California to remove his cancerous spleen. The University was later granted a patent for a cell line called “Mo,” removed from the spleen, which could be used for producing valuable proteins. The long term commercial value of the cell line was estimated at over one billion dollars. Mr. Moore demanded the return of the cells and control over his body parts, but the California Supreme Court decided that he was not entitled to any rights to his own cells after they had been removed from his body.
- Patents on food crops: American farmers and consumers throughout this century have fought against the inclusion of food crops under the patent laws. Corporate control over plant varieties themselves has been regarded as contrary to the interests of the general population. Patenting plant life will also intensify the inequality between the developing and industrialized nations. The open exchange of seeds and plant material over the centuries has given the U.S. and Europe potatoes and tomatoes from Latin America, soybeans from China, and wheat, rye and barley from the Middle East, to name but a few. The developing world has never received compensation or recognition for these intellectual and technological contributions. Patenting plant life will exacerbate this inequality. While centuries of innovation by indigenous farmers have created most of the food crops grown today, the tinkering by agribusiness entitles them to claim a plant as their own invention, and receive all profits from its use. This “biocolonialism” will continue the pattern of a few transnational corporations profiting at the expense of large numbers of indigenous farmers.
The hunt for new genes to exploit for profit is regarded as a vast new frontier in science and industry. “Bioprospectors” are mining the rich genetic resources of the Third World for pharmaceutical compounds and other products, often using indigenous knowledge as their guide. As a result, indigenous communities could end up paying royalties for products based on plants and knowledge that they have been using for centuries.
Searching the world over
As new DNA sequences on our chromosomes are being identified, entrepreneurial scientists are applying for patents in order to claim exclusive rights to research and profits from thousands of such gene sequences. The Human Genome Organization (HUGO) is an international membership organization of individual scientists dedicated to coordinating efforts in genome research. HUGO recently released a statement in favor of the right of those who have determined the biological functions or products of the genes to patent their work. Patents are necessary, they claim, to provide financial incentive for scientists to do meaningful research. Does the research of molecular biologists give them the right to own genes?
A project associated with HUGO is the Human Genome Diversity Project. Designated by critics as the “Vampire Project,” it aims to collect blood, hair and cell samples from up to 700 indigenous communities throughout the world. The stated goal is to gather genetic information from “vanishing” indigenous communities before these people disappear as a result of increasing industrialization and political repression. Many indigenous groups are outraged that researchers might patent genes without the consent of the communities of origin. All of the targeted groups agree that the goal of cultural preservation could be achieved by better methods than merely keeping their genes frozen away in a laboratory tissue museum. As Chief Leon Shenandoah of the Onondaga Council of Chiefs wrote in a letter to the National Science Foundation, “If there is a concern for our demise, then help us survive on our terms.”
Gandhi’s tree: a case of biopiracy
The neem tree, a native of the Indian subcontinent, has a myriad of applications in traditional Indian Ayurvedic and Tibetan medicine, agriculture, and household use, as well as being symbolic as “Gandhi’s favorite tree.” Its usefulness is known throughout India. The Latin name, Azadirachta indica, is derived from the Persian for “free tree,” as even the poorest families have access to its beneficial properties.
However, it is possible that Indian citizens will soon be required to pay royalties on the products produced from the neem, since a patent has been granted to the U.S. company W.R. Grace on a compound in the tree (azadirachtin) for the production of a biopesticide. In 1993, over five hundred thousand South Indian farmers rallied to protest foreign patents on plants such as the neem, and launched a nation-wide resistance movement. Under free trade agreements such as GATT (General Agreement on Tariffs and Trade), countries of the developing world will feel strong pressures to implement U.S.-style patent systems. Multi-national corporations can make large profits on their “discoveries,” while depriving the communities which have fostered this knowledge for centuries of the choice of how they would like to use their own knowledge and native species.
The CRG opposes all forms of patenting life
No individual, institution or corporation should be able to claim ownership over species or varieties of living organisms. Nor should they be able to hold patents on organs, cells, genes or proteins, whether naturally occurring, genetically altered or otherwise modified. Our reasons are:
Patents make important products more expensive and less accessible. The biotech industry claims that patents are necessary so that innovative, life-saving technologies will be developed. In actuality, patents enable companies to create a monopoly on a product, permitting artificially high pricing. As a result, products such as drugs are often priced out of reach for many of those who need them.
Patents in science promote secrecy and hinder the exchange of information. By patenting products of research, the free flow of ideas and information necessary for cooperative scientific efforts is reduced. Scientific materials required for research will become more expensive and difficult to purchase if one corporation owns the rights to the material.
Patents exploit taxpayer-funded research. The development of biotechnology rests on 50 years of federally funded biomedical research. Corporations can make profits on their patented products by charging high prices to the citizens whose tax dollars supported the research and development of the products. Citizens are unfairly being asked to pay twice for medicines and other products.
Patents promote unsustainable and inequitable agricultural policies. A disastrous decline in genetic diversity could be the result of patenting of crop species. The genetic diversity inherent in living systems makes patent claims difficult to defend. 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 lure farmers to grow modified varieties with promises of greater yields and disease resistance. However, numerous examples worldwide 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.
First World patenting of Third World genetic resources represents theft of community resources. Patents held by the industrialized world on resources from the developing world will serve as a tool for the North to accumulate more wealth from the already economically impoverished South. Microorganisms, plants, animals and even the genes of indigenous people have been patented for the production of pharmaceuticals and other products. Requiring developing nations to pay royalties to the wealthy industrial nations for products derived from their own natural resources and innovation is robbery.
- Patents on living organisms are morally objectionable to many. Patenting organisms and their DNA promotes the concept that life is a commodity and the view that living beings are “gene machines” to be exploited for profit. If it is possible to consider a modified animal an invention, are patents and marketing of human reproductive cells far behind? Patents derive from concepts of individual innovation and ownership, which may be foreign to cultures which emphasize the sharing of community resources and the free exchange of seeds and knowledge.
Editor’s Note (6/02): The number of patents on living organisms and their parts continues to grow. The international group ActionAid’s 2002 research revealed that six agrochemical companies hold over 900 patents on varieties of the world’s five major staple food crops.1 The year before, the U.S. Patent Office awarded 20,000 gene patents and another 25,000 were pending.2
- Charnas, R. 2002. “No patents on life: Working group update.” GeneWatch, 15:3.
- Albright, M., 2002. “The end of the revolution.” GeneWatch, 15:3.
© April 2000, Council for Responsible Genetics. CRG position paper reprinted with permission. See reprint policy.