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Biodiversity, Knowledge & Rights Series
The Inappropriateness of
The Patent System for
Life Forms and Processes
Tewolde Berhan Gebre Egziabher
TWN
Third World Network
The Inappropriateness of
the Patent System for
Life Forms and Processes
Tewolde Berhan Gebre Egziabher
TWN
Third World Network
Penang, Malaysia
The Inappropriateness of the Patent System for
Life Forms and Processes
is published by
Third World Network
228 Macalister Road
10400 Penang, Malaysia
copyright © Third World Network 2001
This is part of a series of papers on biodiversity, knowledge
and rights, published by the Third World Network, aimed at
deepening public understanding on the inter-relationships
between biodiversity, knowledge on the conservation and
sustainable use of biological resources, and the rights relating
to such resources and knowledge.
Printed by Jutaprint
2 Solok Sungei Pinang 3, Sg. Pinang
11600 Penang, Malaysia
Contents
Chapter 1
Introduction
1
Chapter 2 The TRIPS Criteria for Patenting
2
Chapter 3 Invention and Discovery
3
Chapter 4 Are We Inventing Life?
5
Chapter 5. Some Problems Associated with
Patenting Life
5.1
Product or Process?
5.2
In Quest of Justice
10
Chapter 6. Conclusions
14
Appendix Patenting and Owning Life: Some Questions
and Answers
15
Chapter 2
The TRIPS Criteria for Patenting
Article 27.1 of TRIPS states:
“...patents shall be available for any inventions, whether products
or processes, in all fields of technology, provided that they are new,
involve an inventive step, and are capable of industrial application."
The use of the phrase, "inventive step", to qualify "invention"
immediately strikes one as tautological. This tautology is rectified
by a footnote which states that "inventive step" means "nonobvious".
The use of the phrase, "capable of industrial application" also
suggests that only those technologies that can be applied in factories
can be patented. This restrictive interpretation is also dispelled by
a footnote which states that "capable of industrial application"
means "useful".
In this TRIPS provision on "Patentable Subject Matter", the term
"invention" and the distinction between "product" and "process"
make the patenting system inappropriate for life forms and life
processes. Obviously this claim has to be substantiated and I will
try to do just that.
2
Chapter 3
Invention and Discovery
Article 27.1 of TRIPS states that inventions are patentable. By
implication, this means that discoveries are not patentable. The
word "invent" is not defined, thus we have to resort to a dictionary
definition of the term.
The Oxford Shorter Dictionary gives the word "discover" and the
phrase "expose to view" as one set of optional meanings. I do not
think that this is the intended meaning in TRIPS. Otherwise the
whole Agreement is in serious trouble.
For example, a child is born with a blank mind. As it grows up, it
discovers everything. Everything could then be everybody's
"patentable subject matter". The WTO could not be established to
enforce such an absurdity!
Another meaning is given as "devise as an untruth". This would
make patenting a system of falsification. I am sure that this is not
the intention of TRIPS.
A third meaning is "found" or "institute". Since institutions are
not patentable, and since, even after the establishment of WTO,
there has been no move in that direction, I can also discount this
meaning. Otherwise, who would patent the WTO?
There are also three interrelated meanings:
o
"devise by means of the intellect or imagination",
o
"create, produce or construct by original thought or
ingenuity"; and
o
"devise or originate a new art, instrument, process, etc."
All three of these nuances of "invent" can apply as a requirement
for patenting. They all have "devise" or "create" as the operative
word. Both "devise" and "create" imply the making of something
3
that did not exist, and in the context of Article 27.1, "something"
means technology. Therefore, they exclude the sense of "discover",
even if what is discovered is a technology, e.g. an implement buried
with some Egyptian Pharaoh of 7000 years ago.
4
Chapter 4
Are We Inventing Life?
Living things are made up of only some of the elements that
constitute the non-living world. It is, therefore, possible that life
could be "invented". Whether we believe this is possible or not is
of little relevance to our present discussion. It is, however, important
to note that no living thing has been obtained by human agency
constructing it solely out of the non-living world. If someone
invented a living organism in that manner, she/he would definitely
be entitled to patent the invention, and perhaps revel in being a
god.
What, then, are the claims for inventing life?
Finding a hitherto "unknown" - even "unknown" refers only to
the "modern" sector; it is likely to be known to some local or
indigenous communities - trait or traits is said to be a patentable
technology in some countries. Obviously, these countries accept
that "discovery" is "invention".
Determining the nucleic acid sequence of a gene is also said to
enable patenting. Whether the nucleic acid sequence is known to
anyone or not at all will not make the slightest difference to the
traits of the organism. Such a sequencing is, therefore, merely a
discovery. It should not be patentable.
In any case, many of the genes are the same across species. A given
gene is, therefore, the same for many species. If I determine the
nucleic acid sequence of a gene from a bacterium and patent it
because of this fact, what would happen if another person
determined the nucleic acid sequence of the same gene from a tree?
Whose patent should "protect" the gene? If I were to determine
the nucleic acid sequence of the same gene in two different species,
could I have two patents on the same gene? Or, will the first patent
prevent further patents?
5
Even assuming that I have sequenced a gene from a bacterium and
it has not been sequenced in any other species, does that make it
unique? No. This is because, to claim that, all other forms of life
would have had to have all their genes sequenced, and I have to
have all that information at my disposal.
So far, scientists know all the nucleic acid sequences for the
bacterium Escherschia coli. Recently, it was reported that the genes
of rice have also been sequenced, and rapid progress has been made
on the sequencing of the human genome. And yet estimates of the
number of species in the biosphere range from 10 to 60 million.
Would we, thus, ever be certain that a gene is unique?
When a specific gene (a nucleic acid sequence) is introduced into
an organism, the introduced gene may be expressed (i.e. it may
result in a trait new to the receiving organism). But, just as the gene
existed in another organism, so did, presumably, the trait it
determines. Obviously, anyone who introduces a gene in this
manner deserves to be rewarded for the technique used in
introducing that gene or genes, and/or for the skill for doing so.
The invention of the technique should be patentable, but neither
the introduced gene, nor the expressed trait, are inventions and
they should thus not be patentable. The particular skill is
presumably rewarded through the salary payment system.
But of course, to make the effort of patenting worthwhile, the
technique will have to be one that can be used often enough, e.g.
the gene gun, with differing genes and differing recipient
organisms. If it is a once off technique, nobody would bother to
patent it.
The expression of the introduced gene is not always as predicted
a priori. Its expression in its new host organism may be different
from its expression in its parent organism. Should it then be
patentable? In other words, would it then be a discovery or an
invention? I maintain that it would be a discovery.
A comparison with the behaviour of water would help clarify this
6
issue. Water, like all substances, reduces in volume as it cools down.
However, when it turns to ice, it suddenly expands. That is why
many a wine bottle put in the freezer and forgotten, shatters. Simply
because icy water at freezing behaves differently from liquid water
at room temperature, can we say that it is natural in one state, but
is not natural and is thus invented in another state? No. we can
only say that, by freezing it, we discover additional properties of
water.
Similarly, the fact that one gene, when in the cell environment of
one type of organism behaves differently from that when it is in
the cell environment of another type of organism does not make its
new behaviour an invention, only a discovery of an additional
property. Besides, if a trait that is expressed is different from the
one that had been expected a priori, it would only show a weakness
in the prediction, not an invention. I do not believe that the patent
system is aimed at rewarding weaknesses!
Genes and Traits
Genes determine traits. A stringing together of chemicals
known as “nucleic acids" into two counterpart strands, not
unlike a twisted rope, makes up a chromosome. The
substance of chromosomes, which is made of nucleic acids,
is called Deoxyribonucleic Acid (DNA). Chromosomes are
found in the nucleus of a cell, but organelles, e.g. plasmids,
which are outside of the nucleus, may also contain DNA.
Points on a strand of a chromes have specific nucleic acid
sequences which, together, make up a gene. A gene in one
strand has the same function as its opposite counterpart in
the other strand. The nucleic acid sequence in two opposite
genes (known as alleles) may be either the same or different.
If the same, then they reinforce each other in producing a
trait and the organism is homozygous with respect to that
gene. If different, then one of the pair of sequences
______________________
7
determines the traits, and the effect of the other is eclipsed.
When this happens, the trait of the homozygous state of the
dominant allele and this heterozygous state are similar. The
alleles may also be equally dominant and the compromise
trait is different from that of the homozygous state.
Genes are responsible for the presence of specific enzymes
in the cell. These enzymes influence the complex chemical
reactions that are constantly taking place in the cell. Specific
traits are, therefore, the outcomes of the interactions among
many molecules. The individual steps of the interactions are
directed by specific enzymes.
In genetic engineering, a specific gene or genes are
introduced into the cell and may get inside an organelle or
inside the nucleus. Hence, it or they may attach itself or
themselves to any part of the chromosomes in the nucleus
or to DNA bodies in an organelle.
The physical relationship among genes may influence “gene
expression" or a trait. If the new gene attaches itself to the
DNA in an organelle, its amount in the cell will vary because
the numbers of a particular organelle (e.g. plasmid) in a cell
are variable as the organelle divides and multiplies unrelated
to the mother-cell division.
It is perhaps for these and similar reasons that the impacts
of genes introduced through genetic engineering cannot be
predicted beforehand with any absolute certainty. It is not
unusual to encounter many unexpected traits.
Chromosomes physically reorganize at each cell division.
Because of the reorganization, some of the reproductive cells
end up without one or more of the introduced genes. Thus
for this reason and for other complexities of genetics, the
8
number of individual organisms without the introduced gene
increases with increases in the generations coming forth from
a genetically engineered organism.
• 9
Chapter 5
Some Problems Associated with Patenting Life
If we ignore the biological objections to treating what is now being
done with molecular biology (which studies, among others, the
physics and chemistry of nucleic acid sequences) and genetic
engineering as "inventions" and, consequently support Article 27.3
of TRIPS, we create problems for the system of patenting.
We will now look at some of these problems.
5.1. Product or Process?
What is a product and what is a process in a living organism?
It seems to me that the way of introducing a gene into an organism
is a process. If I want to make a carburettor, I use a combination of
human hands, tools and machines. This is analogous to introducing
the gene into an organism which did not have it before. Then the
transgenic (genetically engineered) organism and the carburettor
would both be products.
My aim in inventing the product called carburettor is to carry out
another process: that of burning fuel efficiently. Similarly, my aim
of producing the product called transgenic organism is to have the
process of, say, producing a measles vaccine in wheat.
Now, the process of living takes over from the transgenic individual
and makes it produce many more transgenic individuals through
reproduction. This extra process has no mechanical counterpart or
analogue. It is not caused by my introduction of the foreign gene.
It is something in all life, something I have not influenced by my
genetic engineering. This process substitutes in each generation the
hand, the tool and the machine needed to make each carburettor.
10
If the introduction of a gene is an invention, each ensuing generation
becomes "self inventing" and creates the next generation. Is it then
logical or fair, even if we ignore the distinction between inventing
and discovering, to I say that I "invent" any generation beyond
that particular individual into which I originally introduced the
foreign gene? If I had invented the reproduction process also, then
all succeeding generations would have been my invention. The
reproduction process, which is needed to produce all the transgenic
individual organisms which come out of the genetically engineered
single parent, thus wipes out every "invention".
If I insist that I have the right to expropriate the biosphere and
claim this "self invention" of my transgenic organism as being my
creation, I should also be responsible for whatever happens through
that process. In which case, I would be responsible for:
•
the "loss of quality" that occurs with each generation
producing individuals without the gene I have introduced;
•
the change that would occur in non-target individual
organisms which cross with my "invention" through the usual
process of sexual reproduction;
•
any unforeseen behaviour of the transgenic variety; and
•
any impact, be it positve or negative, and thus becoming
absolutely liable in case of any damage or manifestation of any
trait or behaviour not specified beforehand.
It is also usual to patent the use of specific biomolecules, which are
outcomes of biological processes. For example, if aspirin had been
discovered recently, its use would have been patented.
There are now literally thousands of patented biomolecules. The
extraction of biomolecules from living things is obviously a
discovery, not an invention, since the biomolecules existed prior to
being extracted. The method of extraction can, however, be an
invention and patentable.
11
Since the biomolecule existed before extraction, its properties also
existed before extraction. The extraction process does not add
anything to, or decrease anything from, its properties. The use of a
biomolecule is simply the result of recognising one existing useful
property of the biomolecule.
Patenting that use is, therefore, inconsistent with "invention" as a
criterion. When Article 28 of TRIPS gives monopoly control over
the "making, using, offering for sale, selling or importing" a
product, therefore, the provision should apply only to molecules
constructed by humans, not those extracted. The practice of
patenting so far, however, also includes those molecules extracted
from living things.
Even a biomolecule "constructed" becomes an invention only if it
does not also exist in any organism or part of that organism, be
that alive or dead. Otherwise, it becomes merely a synthesis of a
biomolecule that is identical with what already exists. Of course
the technique for the synthesis could be invented and should be
patentable.
5.2. In Quest of Justice
The use that a biomolecule is put to is often the same as that which
the organism or its part has long been put to by some local or
indigenous communities. Would it then be fair to patent that
biomolecule merely for knowing its use while those who knew its
use beforehand give it away free and receive no material benefit
out of it?
Assuming that the use is entirely new, is it fair that those who
discover scientific truths, e.g. the nature of quarks, cannot patent
them, but someone who finds a new use for a naturally occurring
enzyme can?
If I patent a gene in an organism, is it fair that that one gene is used
to prevent everybody also from getting hold of the thousands of
other genes in that organism? In this age of extinction, the patented
12
organism could be the sole source of those genes. In any case, even
if extinction were not an issue, keeping others out should be possible
only when ownership is absolute and complete. I should have the
right to keep others out of my own house, but not out of the city I
live in!
13
Chapter 6
Conclusions
It seems to me that society knows the distinction between discovery
and invention. It is greed that makes individuals distort these
meanings so that, in the name of invention, they can monopolise
discoveries.
But discoveries should also be rewarded. A system for such rewards
should be developed. However, distorting the meaning of patenting
in order to make it applicable to life only serves to attract the
rejection of the whole system. Who ever worried about the
legitimacy of patenting before the 1990's, before it became known
that the USA was allowing the patenting of living things? But now,
opposition is growing all the time, opposition not only to the
legitimacy, but also to the legality, of patenting.
14
Appendix
Patenting and Owning Life:
Some Questions and Answers
The system of patenting was developed for machines. Now, it is
being forced onto living things and most of the problems of
patenting life arise from this fact. In the following, several questions
are raised pertaining to the patenting of life with brief answers.
Imagine that I invent a new kind of carburettor that economises on
fuel.
Q
If I patent it, is the rest of the car also patented?
A
No.
Q
When I patent an organism because I claim to have
invented a gene, do I patent also the whole organism?
A
Nominally, no. In practice, yes. This is because the carburettor
is sold individually, but the gene is in the organism. I am thus
prevented access to the whole organism in the name of
protecting the patented gene.
Q
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?
A
Yes, in some countries. Nominally, no. But, in either case, I
effectively keep out users of the other genes. Therefore, in
practice, yes in all cases.
Q
If I have invented a carburettor, would I not be able to
scale it up or to scale it down to make it fit a lorry or a
motor cycle?
A
Yes.
15
Q
When I do this would I not know beforehand what the effect
would be on the lorry or on the motor cycle?
A
Yes, though some fitting trials, as with a garment being
tailored, will be needed. Making it fit is always possible.
Q
When I introduce a gene into one organism or another,
do I find that its impact in both cases is as predicted?
A
Often, not.
Q
When not, can I change the scale (or whatever dimension)
of either the gene or the organism, to make it match my
prediction?
A
No.
Patenting life thus indeed becomes 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.
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.
Q
16
But do they create the living thing?
A
They do not. Even they would only claim that their creativity
is reflected in the living thing, not that they have made it.
Q
What can creativity contribute to the gene that has already
been created to keep it as it has been since it was created?
A
Nothing other than protecting the variety that contains it from
extinction. But then, this important issue is ignored in
patenting.
Q
What would creativity mean then?
A
Nothing. If genetic engineers 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; it only needs to be useful.
When genetic engineers claim creativity in relation to life, one
of the activities they point to is the extraction of biomolecules.
They deliberately confound discovering what exists to make
it seem as if it were something that is different from its actual
self, that is not itself, that has been brought out of non
existence.
Q
Why else would a chemical extracted from a living thing
be patented?
A
Why else indeed since we are told that discoveries are not
patentable? A newly created instrument for making the
discovery would, however, be patentable.
Q
Or are discoveries per se patentable?
A
At least the Patent Office of the USA thinks so.
Another basis for claiming creativity is the detailing of how
the biomolecule is to be used. Such a use is often the same as
17
what is traditional to local communities somewhere.
Q
If a company patents that traditional use as its own
“invention”, is it not then plagiarism or piracy?
A
No doubt about it.
Q
Is the patent office that has allowed it then not legalising
robbery?
A
Definitely.
Q
Does an act stop being a crime merely because the law
allows it to be committed?
A
No. Did not Europe and North America set the Nuremberg
trials to punish acts that had been legal in the Nazi era?
The use of a biochemical might also be newly discovered. This
is claimed to be patentable.
Q
Is that new use an invention, or a discovery?
A
A discovery. If a use could be invented, imagine what a
difference it would make to invent a use that would make
rock become food directly!
Q
Should then the use, or the chemical itself, be patented?
A
Neither, since they are both discovered.
Q
Which is currently being patented in the various
industrialised countries, the biomolecule or its use?
A
Both the biomolecule and the use of a biomolecule.
Q
When it is the use that is patented, should access to that
18
patented biomolecule then remain open, and making and
using it for other purposes be allowed?
A
Yes. I realise however, that once a chemical is available to the
public, it is not easy to restrict its use in order to exclude that
which has been patented.
Q
Is it then fair to deny other uses in order to protect one
particular use which has been monopolised?
A
If the claim is that patenting is aimed at maximising service to
society, no. If patenting is for monopoly control only, then yes.
Q
In other words, should we err in favour of society as a
whole or in favour of one particular legal or natural
person?
A
In my view as a citizen of a developing country, I would say
we should err in favour of society. If I head a genetic
engineering corporation, I would presumably have said that
you should err in my favour.
Extracted biomolecules can often be synthesised and thus be
made artificially in a chemical plant. Such synthesised
chemicals are claimed to be patentable.
Q
Will the synthesised molecule, then, have been invented?
A
No.
Q
Should it then be patented?
A
No. 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
19
called inventor would not accept this distinction: the rationale
behind synthesising something is the making of an exact
replica.
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, that 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.
Q
Do laws allow the patenting of only specific traits? Only
nucleic acid sequences? The whole organism?
A
According to the information 1 have, USA laws allow the
patenting of traits and of the introduced gene(s). In theory,
the whole organism is not patented; but in practice, the
patented gene(s) or trait locks up all other genes and traits.
The European Patent Directive would have done the same as
that of the USA; but it is not yet in effect: it is being challenged
by the Netherlands and Italy.
Q
What about simply crossing individuals to create a new
individual with a new combination of nucleic acid
sequences and traits?
A
In laws that allow the patenting of traits, this will be patented.
In laws that require the deliberate introduction of a selected
gene or genes, e.g. through recombinant DNA technology for
patenting, this will not be allowed.
Q
Is the organism then an invention?
A
It cannot be, even if so claimed.
20
Q
Or do the nucleic acid sequences have to be introduced
only through recombinant DNA technology to make the
organism an invention?
A
The claim is that through this or through technologies that
achieve the same (transformation) process in other ways, the
organism becomes "invented". Obviously, this is absurd.
Q
Or will simply identifying the nucleic acid sequences that
determine the traits make the organism an invention?
A
It should not. But for the USA, the answer is yes since
determining nucleic acid sequences enables patenting.
Obviously, this is absurd since the organism is not even
modified, as it remains the same whether someone knows its
chemistry or not. But then the patent is said to be for the nucleic
acid sequence, not for the organism. Even thus the nucleic
acid sequence remains the same whether someone knows its
chemistry or not. If every time we "knew" something it
changed, there would never be knowledge.
Q
In which case what has genetic engineering or DNA
sequencing got to do with patenting?
A
Only satisfying the desire for monopoly control. It is true that
recombinant DNA technology combines genes that would not
have come together through natural processes. But the genes
are not invented. Then the patent should apply only to the
particular technology used to bring unlikely genes together,
not to the genes themselves. "Product patenting" is valid only
when the product is brought out of non-existence.
Q
Why is it then said that the organism is invented?
A
In order to have a monopoly control over it.
Q
Would it not suffice to say that it is the process of
combining the genes that has been invented?
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A
It should. But this would enable only the monopoly control of
research. Such a limited control would not be very lucrative.
Patenting the organism enables the monopoly control of all
economic activities involving it. The desire for greater control
and for more gain thus brought about the patenting of the
organism. There is an Ethiopian proverb: "You rename a
vulture which you want to eat, a chicken or a francolin".
Conversely, when we find an organism, it is with all its nucleic
acid sequences inside it.
Q
Why cannot we patent it, if all that genetic engineering
does is combine existing DNA sequences?
A
When we patent traits, as in USA, we do precisely that since
an organism is made up of its traits and/or genes.
The consequences of this distortion are multifaceted. Some
examples follow.
Q
Would allowing a gene or a trait to be patented not make
the other genes and traits in the whole organism
unavailable to others?
A
As already pointed out, yes. That is the whole idea.
Q
Should not one, looking for ways of using that organism
without the patented trait or gene, be allowed to use it?
A
You can guess that I think that one should.
Q
Does one have the right to excise or splice out the
patented gene or trait and use the rest?
A
I believe that one should. But then, one is not allowed to do
research on a patented organism as one wishes. It may be
argued that one could use other organisms in that species that
do not contain the patented traits or genes.
22
Q
What if that organism with those patented genes or traits
is the only surviving variety of the species?
A
Too bad, though in this age of extinction, this is not unlikely.
Q
What if there are other genes or traits that occur only in
that variety with patented genes or traits?
A
Again too bad. And yet 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.
Q
Is this fair?
A
No. But again - too bad.
Q
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?
A
We would not. But if you find the same sequence in another
organism, too bad for your apparent good luck.
Q
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?
A
In theory, yes. But the human species as we now know it will
probably be no more before we can be absolutely certain, since
we shall be certain only after we have worked out the DNA
sequences of all genes found in nature.
Q
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?
23
A
Presumably on a first come first served basis. However, I do
not know. 1 do not think that this problem has as yet arisen.
But many of the genes are the same even in species as different
as bacteria and humans. And the number of species on earth
is estimated to be ten to sixty million depending on who has
done the estimating. So far, we know the nucleic acid
sequences of all the genes only for a very small number of
species.
[Editor's Note: Recently scientists have sequenced the genes
for rice and the plant Aspidistra, and rapid progress is being
made on the Human Genome Project.]
When I patent a carburettor, it is for the use of the carburettor
as such (perse'). This carburettor remains unchanged until it is
thrown away either because it is broken or gets old. When I
patent an organism, it is for its reproductive capacity.
Q
Assuming that an organism is “invented” and can thus
be patented, should the progeny also be patented?
A
I do not know. Do you?
Q
If the progeny inherits a patented status from its parent,
is it then identical with its parent?
A
In the case of sexually reproducing organisms, even when
hermaphroditic (i.e. they do not cross with other individuals)
the progeny is still different. Even in a vegetatively
reproducing (splitting to make two or more individual)
organism, there sometimes is change in the progeny. A
transgenic (with gene(s) introduced from other organisms) has
a portion of its progeny without the patented gene(s).
Q
If what is being patented is the reproductive capacity, and
the patented trait or gene is not always in the progeny,
would society accept patenting a carburettor which, every
24
season (c.f. cropping season) reverted partly to iron ore?
Who would buy a steadily rusting carburettor?
A
Nobody.
Q
Is that the reason why genetic engineering companies
make farmers buy new seed every season?
A
Yes. But also because they get more money that way.
Q
If they are doing so because their transgenic organisms
do not always breed true, should supplying new seed
every year not be a free service given to maintain their
patents?
A
Yes. But there is nothing like making money out of somebody
else's position of weakness!
Patenting seems totally inappropriate for applying 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.
Q
I wonder how many of you have heard of Mr. Moore of the
United States of America whose liver has been patented?
A
I do. He went to the hospital. They took out a piece of his liver
and they cultured it. They patented it. He claimed that they
had no right to 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 that, therefore, 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.
Q
But how long will it take for the continuing distortion of
inventing to press home the fact that the piece of liver
25
inside him is the same as that outside him, and, following
the habit of distorting, declare that the liver inside is also
the patent holder’s invention?
A
At the going rate, no time at all.
Q
Then what?
A
Suppose that, then, I buy the patent on Mr. Moore's liver, and
suppose that 1 also patent his blood in a similar manner, and
suppose that I want my liver out of him in the style of Shylock,
then I can get grim. 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 free in "this world
of growing freedom and democracy." Unless, of course, Mr.
Moore is rich enough to keep giving me my royalties for his
liver and for his blood!
26
ABOUT THE AUTHOR
Dr Tewolde Berhan Gebre Egziabher is a distinguished
academician who has served in Addis Ababa University
as lecturer, Science Faculty Dean and Keeper of the Na
tional Herbarium and then, as Asmara University's Presi
dent. He is a well-known negotiator representing the
Ethiopian government in international fora, especially on
issues of biosafety and biodiversity. In 2000, Dr Tewolde
was awarded 'The Right Livelihood Award' for his ex
emplary role in representing the Like-Minded Group at
the biosafety negotiations in Cartagena and Montreal, and
in achieving an outcome that stressed tire importance of
the conservation of biodiversity and the traditional rights
of farmers and communities in developing countries to
their genetic resources. Currently, he is the General Man
ager of the Environmental Protection Authority of Ethio
pia.
BIODIVERSITY, KNOWLEDGE & RIGHTS SERIES
is a series of papers published by the Third World Network,
aimed at deepening public understanding on the inter-re
lationship between biodiversity, knowledge on the conser
vation and sustainable use of biological resources, and the
rights relating to such resources and knowledge.
ISBN: 983-9747-54-1
Position: 1780 (3 views)