by Rebecca Charnas
Our genes have been evolving for hundreds of millions of years. The basic food crops that sustain us all have been carefully bred for at least ten thousand years by farming communities. Yet individuals, institutions, and corporations have the audacity to claim to have invented these shared biological resources. In the two decades since the US Supreme Court first ruled in Diamond v. Chakrabarty that a genetically engineered bacterium could be patented, the US Patent and Trademark Office (USPTO) has expanded patent rights to encompass not just microorganisms, but gene sequences, expressed sequence tags (ESTs), proteins, cell lines, genetically modified plants and animals, and even non-genetically modified species.
Meanwhile, similar patents on life are being forced on the rest of the world through the Trade Related Aspects of International Property Rights (TRIPs) agreement of the World Trade Organization (WTO). In an attempt to reverse this trend of patenting life, the Council for Responsible Genetics is now working with other groups throughout the United States to draft model legislation that would exclude living organisms and their parts from the patent system. We hope that this model legislation will help build a "No Patents on Life" movement in the United States, which not only supports the growing international movement but also successfully challenges US domestic policy on life patents.
The number of patents on genes, food crops, and other living organisms and their parts is growing. The international anti-poverty organization ActionAid recently documented that there are over nine hundred patents on varieties of the world’s five major staple food crops; six agrochemical companies control most of these patents. Another study, published last year in Science (February 16, 2001, Vol. 291) found that just three biotechnology companies had filed for patents on over 20,000 full-length human gene sequences. Already at least 1,300 patents on full-length human genes have been granted. This expropriation of humanity’s collective heritage into a few private hands is not only unfair; it has potentially devastating consequences. Patent holders gain the right to either charge licensing fees or exclude others from using or benefiting from their patented invention for twenty years. Already the harmful effects of life patents on human health, food security, agriculture, indigenous rights, and global development are apparent.
Not surprisingly, opposition to life patents is mounting. Throughout the world advocacy organizations, individuals, research institutions, and governments are joining the fight against life patents. There is strong opposition to TRIPs’ draconian patent regime, especially in developing countries, and there are also efforts to work outside the WTO, in forums such as the Convention on Biological Diversity and the Commission on Plant Genetic Resources for Food and Agriculture, to challenge TRIPs. Last February, hundreds of civil society organization from over fifty nations announced an initiative for a new international treaty that would establish the earth's gene pool as a global commons and abolish patents on life.
In the United States, these important international efforts are only half of the battle. For life patents to be prohibited here, both international law and domestic policy will have to change. Unfortunately, within the United States, the legal position favoring patents on life has been strengthened in the last eighteen months. At the beginning of last year, the USPTO issued new guidelines explicitly stating that genes could be patented. In December 2001, the Supreme Court reaffirmed its embrace of life patents when in JEM Ag Supply vs. Pioneer Hi-Bred the court found that utility patents can be issued for seeds and seed-grown plants.
But there is hope. The law, as currently interpreted, may allow for patents on living organisms and their parts, but patent laws can be changed like any other laws. Thomas Jefferson, who drafted the nation’s first patent regulations, wrote that whenever the monopoly granted by a patent was contrary to the public interest, the public interest should take precedence. Indeed, the US Congress has repeatedly amended patent law when it felt that it was not serving the public interest. For example, Congress voted to exclude nuclear weapons from patentability. There is no reason why it could not do the same with life patents. The Chakrabarty decision is actually quite explicit in this regard. It states, “Congress is free to amend Section 101 so as to exclude from patent protection organisms produced by genetic engineering.”
The biotechnology and agrochemical industries will lobby hard to prevent Congress from ever passing legislation outlawing life patents. The challenge for the small but growing “No Patents on Life” movement in the United States is to counter the industry’s money with a large, popular constituency that is too powerful to ignore. Accordingly, the CRG and the other organizations drafting model No Patents on Life legislation do not plan to bring the legislation directly to the halls of Congress but rather to bring it first to the American public. We hope that by educating people about the issue and illustrating the possibility of change, the model No Patents on Life legislation can help build a broad-based social movement to change US patent law. The seeds for this broader movement have already been planted within public health, farming and environmental organizations, religious communities, the anti-GE food movement, and many other groups.
While the campaign against patents on life will likely be a protracted one, it is promising that at least a few people in Congress are beginning to take notice. Representatives Lynn Rivers (D-MI) and David Weldon (R-FL) recently introduced two bills into Congress that aim to address some of the negative impacts of gene patents. The first bill would provide a research and diagnostic testing exemption for gene patents. The second bill would mandate a study of gene patents to investigate whether more sweeping changes to the current patent policy are needed. The Council for Responsible Genetics has joined with medical associations, such as the College of American Pathologists, and patients’ rights groups, such as the National Organization for Rare Disorders, in endorsing the bills. If the legislation passes, it would represent a limited, but important, step towards mitigating some of the detrimental effects of gene patents. The bills also provide a valuable opportunity to raise public and congressional awareness about gene patents, in particular, and life patents more generally. Perhaps most significantly, the bills serve as a powerful reminder that Congress can and should change the patent law if it is not serving in the public interest.
Of course, the Rivers-Weldon initiatives only scratch the surface of what needs to be done. A growing “No Patents on Life” movement can ensure that these initiatives are the first step, not the last. If you would like more information about patents on life or would like to become involved in the effort to build a national movement opposed to patents on life, please contact CRG’s “No Patents on Life” Working Group at email@example.com or visit CRG’s website at www.gene-watch.org.
Rebecca Charnas is the No Patents on Life Campaign Coordinator Intern at CRG. She is a graduate student in molecular biology at MIT.