Patenting in Biotechnology: The Middle of the Road
St. Thomas University
2 December 2005
A patent gives holders exclusive rights to produce and distribute products for a specified period of time, usually between fifteen and twenty years. This is done in order for inventors to make a profit on their investment of time and resources in creating a product. This process has been extremely useful, but it has become a controversy in relation to one issue. Patenting in biotechnology, giving people and organisations exclusive rights to genetic sequences, genetically altered crops or animals, and the ability to patent far reaching areas such as an entire species, is the source for a lot of tension in scientific, ethical and economic circles. While companies want to protect their investments, scientists fear that patents will limit discoveries. International NGO’s, such as Oxfam, fear that patenting crops could destroy economies in impoverished nations and many people believe patenting any form of life is wrong and could have serious consequences.
The first patent of a living organism was obtained in the United States in 1980. The patent was for an oil eating organism, and this revolutionised patenting, opening the floodgates for biotechnology.
…the number of patents in many areas of basic agricultural research is growing exponentially… U.S. patents related to rice remained well below 100 per year
through 1995. But in 1999 and 2000, more than 600 patents were issued
annually (John H Barton and Peter Berger 1).
Three quarters of bio-engineered plants are held by private companies. With more and more life forms being patented, and most of these patents in the hands of private firms, there is a distinct possibility for the occurrence of some serious problems.
One of the important patents obtained for a living organism was granted to the Wisconsin Alumni Research Foundation (WARF) in 1998. The patent was for “human embryonic stem cells” (Drutman 1), isolated by James A. Thomson. When this patent was issued, “the rest of the scientific community responded with a collective gasp” (Drutman, 1). Scientists were afraid that they would be charged for usage or “even [prevented] … from using the cells at all”(1). WARF agreed to allow free usage of its discovery, but it did not have to. Many patent holders do not follow in WARF’s footsteps.
Many scientists only wish to further scientific discovery, but companies need to make money in order to fund research. On the surface, holding exclusive rights over a new discovery will yield more profits then allowing its free usage. This way other organizations must pay for the use of a discovery. This is what has many people worried, as it could restrict research by inflating costs and restricting access to information. As the director for the centre of genome ethics, Robert Cook – Deegan puts it, “…it makes it more expensive. It also makes it more complicated.” (Drutman 2). Enforced patents can bring on higher costs, and higher costs mean lower profits. When research is not profitable, it is cut off, and less discoveries are made.
The problem with patenting biotechnology in the scientific community may not stem from the evil multinationals people are so afraid of. Cook – Deegan notes that large corporations have not been particularly aggressive about patent enforcement … These large firms generally do not enforce gene patens, and hope that others don’t enforce such patents against them. (Drutman 2) A larger risk could be from small companies attempting to gain a foothold by earning money through enforcing patents. However, small companies can only buy so many patents, and “some private companies want to see less aggressive patenting.” (Drutman 3). Generally, the scientific community seems to want to share. If companies can take each other’s discoveries and expand on them as they see fit, everyone can prosper This is because enforcing patents aggressively only benefits a company in the short term. Eventually it will want to do research requiring the use of another corporations patented discovery, costing it just as much money as it has made with its own patent. Free access to information helps everyone by keeping costs down, and companies recognize this. If the track record of enforcement on patents is as lax as Cook Deegan suggests, then perhaps, when viewed through the eyes of the scientific community, patenting is not as dangerous as it is often thought to be.
According to Andrew Wahl, “The ethics of patenting higher life‑forms could be the defining issue of the 21st century” (1).So what about the moral issue, is it okay to patent life? That is a very subjective question, but the issues and the rulings on them so far can be analysed. To begin with, a patent “must demonstrate novelty, industrial applicability and the involvement of an inventive step” (Pompidou, 1). Something obvious like a commonly known species, without being modified in some way, can not be patented. However, a new process to isolate a certain gene can be patented. This can, in effect, restrict the access to and allow people to profit off of something that exists in nature without an tampering from man.
The Canadian Biotechnology Advisory Committee (CBAC) supports patenting life, even higher life forms. However, it “is against patenting of humans at any stage of development”(Gagnon, 1). The Harvard University “oncomouse,” was developed by scientists who genetically engineered it to develop cancer, aid in cancer research.Harvard University applied for a patent for the oncomouse and CBAC has recommended to the Supreme Court of Canada that the patent be granted. Despite this recommendation, and Harvard’s oncomouse patent in the United States, the application was turned down. While CBAC does support the patenting of higher life forms, the Supreme Court is not willing to set up a precedent to allow this form of patenting in Canada. However, the future could change. CBAC has recommended that a “morality clause” be brought in with any legislation for patenting. It would allow anyone to appeal a patent on the basis of moral grounds and has already been instituted in Europe. This will help the case of people that Dr. Arnold Naimark, chair of CBAC calls “the commodification of life”(Gagnon, 1).
One issue with patenting in biotechnology could have a much larger consequence then either moral stances or enforcement. Patenting genetically modified crops can have world wide influence and either help or hinder millions of lives. Cheap, high yield, highly nutritional crops that are resistant to pests and environmental factors can greatly help in the fight against starvation. An example of these types of crops is golden rice, a super nutritious possible replacement for the common staple of rice. However, these crops can also force local farmers into competing on a market they are not ready for. Even if they are cheap, these crops are much more expensive then what farmers get for free by replanting their traditional crops from the previous year. Many farmers cannot afford new crops, especially since they often have to be bought again every season. Companies with patents on modified crops get much larger profits by forcing purchases on their product every year, because patents can make it illegal to use crops for reseeding. John H. Barton and Peter Berger cite a study which,
shows that anyone wanting to produce golden rice might have to secure the
licences for more then thirty groups of patents issued to separate entities (1).
Obtaining these licences is not cheap. Large companies can crush these smaller farmers. In the words of Jerry Cayford, “biotechnology threatens to take control of the food supply out of the public domain and hand it to the multinational corporations” (2). This impoverishes the farmers and cuts off food supply, making developing nations worse off then they were to begin with, all for the sale of stronger, patent protected plants. However, this is not all bad. Argentina illegally uses genetically modified crops with the support of its government, and it has benefited their food supply without much consequence. Also, some companies allow poor farmers to re-seed with their crops, as long as the crops are not again sold to others for seed
Patenting in biotechnology is something that is needed. Investments must be protected in order to give investors profits so more discoveries can be made. However, limits need to be imposed on what can be patented and what having a patent entitles the holder. Human life is something no one has the right to own, and the patenting of higher life organisms must be closely monitored so it does not get out of control. When it comes to poor nations, the patenting of genetically modified crops must not rob them of domestic markets and what possibility they have of competing on a world market, this can be helped by allowing farmers to re-seed modified crops for free.
Barton, John H. and Peter Berger. “Patenting Agriculture.” Issues in Science & Technology 17.4 (2001) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=4857884>
Cayford, Jerry. “Breeding Sanity Into the GM Food Debate.” Issues in Science & Technology 20.2 (2003/2004) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=12061543>
Drutman, Lee. “It’s in the Genes.” Multinational Monitor 25.7/8 (2004) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=14373196>
Gagnon, Louise. “Federal Committee Supports Patenting of Some Life Forms.” Canadian Medical Association Journal 167.8 (2002) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=7482627>
Pompidou, Alain. “A Question of Priority.” Nature 429.6991 (2004) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=13270458>
Wahl, Andrew. “The Case of the Harvard Mouse.” Canadian Business 75.16 (2002) : 26 November 2005 <http://proxy.hil.unb.ca/login?url=http://search.epnet.com.proxy.hil.unb.ca/login.aspx?direct=true&db=afh&an=7219326>