• Cassandra L. Wilkinson

Patenting Nature -- How Far Should We Go?


“Life sciences and biotechnology are widely regarded as one of the most promising frontier technologies for the coming decades.”
European Commission, Life Sciences and Biotechnology – A Strategy for Europe, 2002
The Daily Show with Jon Stewart recently aired a piece on Monsanto and seed patent laws. Click here to view it on the Daily Show website.
Are you serious? You can’t patent things that already exist and occur naturally, right?
Interestingly enough, the events of the past many years in the biotechnology patent world have brought upon this highly topical question and have caused serious consideration of the potential ramifications of either the continued allowance or future restrictions of the ability to patent those substances or things that are already a part of our world.
First, some clarification:
A biological patent is a patent on an invention in the field of biology, which provides the patentee the exclusive right to exclude others from importing, using, making, or selling the claimed invention in biology for a limited period of time, which could include biological products, genetically modified organisms and genetic material.
http://en.wikipedia.org/wiki/Biological_patent#References
The United States has allowed natural biological substances to be patented (not allowing process or usage) if the substance is appropriately "isolated" from its naturally occurring state. Adrenaline, insulin, and vitamin B12 are examples of patents on naturally occurring isolated products.
Biopiracy: the patenting of organisms or their extracts from indigenous plants or animals that exist and are known to a local popularized area.
http://www.thefreedictionary.com/biopiracy
Do biopatents and/or biopiracy restrict or deny people of a region to freely use their own naturally found and beneficial substances and inventions to positively influence their lives and economy; such as to grow food or treat illness? Does this constitute exploitation or simply recognizing and acting on a “golden” opportunity to make unprecedented improvements on things found and used commonly in everyday life?
How is the current commercialization of biological resources impacting the human race and what can we expect regarding the same in the future?
Okay, enough with the deep questions…..
In June of 2013, the U.S. Supreme Court ruled that that human DNA isolated from a chromosome cannot be patented because it is a product of nature and that naturally occurring DNA sequences are ineligible for patents. This decision, whether you agree with it or not, could likely affect many previously granted patents that involve human genes and could also help to define a “human made invention” or a “product of nature”.
So, where is all this going?
Market, Money and Monopoly
The party that plays the largest role in today’s biopatent market is Monsanto. Monsanto is a publicly traded American multinational agricultural biotechnology corporation headquartered in Missouri, and a leading producer of genetically engineered seed and of the herbicide glyphosate, also commonly known as Roundup™.
Monsanto was among the first to genetically modify a plant cell and now a company that focuses on biotechnology. Once biological patents are granted, companies like Monsanto (usually as the patentee) are quick to assert their rights, many times via a lawsuit, to the use of their patents which include seeds and all uses of the plants and crop that result from the use of the seeds. These companies like Mansanto invest huge amounts into research and development, and bank on the recapture of their expenses through the enforcement of biological patents and the sale made off of their products use. Sounds reasonable, right?
Is this business practice just the “normal provision of a needed product used in mass consumption for a profit” or something else? That is just one of the many questions that have led to Monsanto’s practices of patenting “natural substances” to be criticized and labeled as biopiracy.
Regarding the pursuit of patenting those things that are considered to be naturally occurring substances, Monsanto has moved on from the focus on seeds and broadened its scope to livestock. The most current being the patent application entitled METHOD FOR GENETIC IMPROVEMENT OF TERMINAL BOARS (WO/2005/015989) which generally relates to the field of improving porcine (pig) genetics, at both the individual animals and herds levels, particularly concerning a method for improving and producing terminal sires so that the boars have improved genetic merit as compared with the average herd animal; in short, a patent claiming rights to a pig.
In the case entitled Monsanto Canada Inc. v. Schmeiser [2004] regarding patent rights for biotechnology, the Canadian Supreme Court considered the following questions:
1. The validity and scope of genetic patents - whether or not life forms may be patented; 2. What kind of use constitutes infringement of patented forms; and 3. The "innocent bystander" problem.
How extensive is the impact on farmers and their use or re-use of patented seed crop; should they be considered as “innocent bystanders” in some situations; is it fair for the seed producers to require non-reuse of seeds, the purchase of new seed crop yearly, and/or the engineering of seeds to specifically not be able to re-produce? Is this practice for the company’s financial gain only and to what extent will the livelihood of farmers be changed or damaged? Are the benefits of the modified crop or livestock worth the potential agricultural fallout?
Does this new pattern of genetic modification and subsequent patenting and control of the use of these new substances, constitute a monopoly of what we consider “every day and naturally occurring” goods”? If an entityclaims global patent rights throughout the food chain, it can reasonably be perceived that farmers and food producers, and ultimately consumers, could become dependent on one single corporate entity for the basic substances that are used and consumed in every day life.
“Food” for thought…

#Patents

2 views

© 2017 Head, Johnson, Kachigian & Wilkinson, PC