Life patents Nobody owns nature

Patenting life is a fundamental attack on the understanding of life. We don’t and should never claim to own nature. This is God’s prerogative, not ours. As the scramble to patent living forms, including human genes, gathers pace across society, it will undoubtedly devalue the meaning of life. No part of the earth will be considered sacred.

 

Fr. Seán McDonagh

Environmentalist and writer

The Pulitzer Prize winning journalists Monald L. Barlett and James B. Steele, begin their article “Monsanto’s Harvest of Fear” by describing what happened to Gary Rinehart in 2002. He was accused of planting Monsanto’s genetically modified (GM) soya in violation of the company’s patent. Though it was obviously a case of mistaken identity, since Rinehart was not a farmer, the Monsanto agent threatened him with court action.

 

Such scenes have occurred regularly on both U.S. and Canadian farms over the past decade. One of the most celebrated cases is that of Percy Schmeiser. Percy and his wife Louise Schmeiser operated a farm equipment dealership in Bruno, Saskatchewan, Canada and also farmed in the area. Monsanto filed a lawsuit for patent infringement because some genetically engineered canola was found on his land. Schmeiser is adamant that he did not plant Monsanto’s GE canola. He insists that he is the aggrieved party because his non-GE seeds, which he had developed for the past 53 years, were contaminated by Monsanto’s GE canola from a surrounding farm where GE canola seeds were used.

 

Schmeister believes that Monsanto is intent on gaining complete control of the staple crops of the world by controlling seeds. In the past decade Monsanto has spent millions of dollars buying up seed companies all round the world. He points out that patents have run out on Monsanto’s flagship chemical Roundup Ready. However, farmers who use Monsanto’s GE crops will be forced to use Roundup Ready.

 

Percy and Louise received an overwhelming amount of support in their efforts. Despite this, the financial toll as they fought Monsanto in the courts was enormous, particularly since the Trade-Related Intellectual Properties (TRIPs. 27. 3b) gives extraordinary legal rights to patent holders.

 

A ten years legal battle

 

In 2000 the court ruled against Schmeiser. According to the judgment it did not matter how the GE seeds arrived on the farm, whether by cross-pollination or whether it was blown in on the wind. The very fact that the plants were on his property meant that he was guilty. The judge ruled that all the profits from his 1998 harvest must go to Monsanto, even from the fields where no GE seeds were found. At this point the legal bills were mounting. By 2002 the Schmeisters had spent $125,000 in lawyers and an appeal would cost them a further $50,000.

 

The Schmeisers decided to fight on because they believed they had done nothing wrong. In an interview with Acres USA he said that: “Now, at 70, I am involved with this fight with Monsanto. I stood up to them because a farmer should never give up the right to use his own seed. I felt very strongly about it because my grandparents came here from Europe in the late 1890s and early 1900s to open up this land, to be free, and to grow what they wanted to grow. Now we are going back to a feudal system that they left because they were not free — basically we are becoming serfs of the land.”[1] The long and difficult battle with its stresses and worries took its toll on Louise’s health.

 

The Schmeisers pursued the case right up to the Canadian Supreme Court. In its ruling the court supported Monsanto in their claim to own the gene. This meant that the Schmeisers lost their breeding research, which they had built up for decades, and the varieties that they had painstakingly adapted to their local environment for years through cross-pollination, because they now contained the Monsanto-“owned” gene. However, the court also concluded that the Schmeisers should not have to pay anything to Monsanto because they had not in any way benefited from having the seeds on their property.

 

In an out of court settlement finalized on March 19, 2008, Percy Schmeiser has settled his lawsuit with Monsanto. Monsanto has agreed to pay all the clean-up costs of the Roundup Ready canola that contaminated Schmeiser’s fields. Also part of the agreement was that there was no gag-order on the settlement and that Monsanto could be sued again if further contamination occurred. Schmeiser believes this precedent setting agreement ensures that farmers will be entitled to reimbursement when their fields become contaminated with unwanted Roundup Ready canola or any other unwanted GMO plants.

 

In 2007 the Schmeisers received the Right Livelihood Award for “their courage in defending biodiversity and farmers’ rights, and challenging the environmental and moral perversity of the current interpretations of patent laws”.[2]

 

Exploiting the poor

 

The current patenting regime has been vigorously opposed by people and groups from the Majority world. Isidro Acosta, the president of the Guaymi General Congress in Panama, was shocked and outraged when he heard that the U.S. government attempted to take out a patent on a virus taken from the cell line of a twenty-six-year old Guaymi woman in Panama. Acosta stated: “It is fundamentally immoral, contrary to the Guaymi view of nature …. and our place in it. To patent human material, to take human DNA and patent its products … violates the integrity of life itself and our deepest sense of morality.” [3]

 

Peasant farmers in many parts of the world have expressed opposition to patenting. Representatives from peasant organisations, indigenous people and environmental organisations met in Quito, Equador in January 1999 to review developments in biotechnology condemned patenting. At the end of their deliberations, they published a document called The Latin American Declaration on Transgenic Organisms. It states, “that genetic engineering is a technology driven by commercial interest. It is not necessary. It forces us to become dependent on the transnational corporations which control it, putting our autonomy to take decisions about production systems and food security in real danger.  In the field of agriculture there are traditional and alternative technologies which do not pose such risks and which are compatible with the conservation of biodiversity. “[4]

 

Against religion and moral

 

The South Asian Network on Food, Ecology and Culture (SANFEC) organized a workshop on patent in Tangil in February 1999. The Workshop was attended by participants from Bangladesh, India, Malaysia, Nepal, Pakistan, Sri Lanka, Thailand and the Philippines. The following are extracts from the statement issued at the end of the meeting:“South Asian communities are historically premised on the deep sense of moral, religious and cultural values. The region is inhabited by multi-ethnic, multi-religious and large indigenous communities. All trees, crops, animals, birds, organisms, and soils are an inalienable part of our worships, our rituals, our celebrations, our joys, our culture of sharing and our loving affinity to each other. Our region is replete with hundreds of thousands of sacred groves where trees and plants are worshipped by people. We have a long history of spiritual and political movements where Sufis, Saints and various bhakti traditions have fought to preserve the integrity of Nature in her multiple expressions, including the beauty of the life forms.

 

Such gifts must be cared for and respected and only then can we gain moral rights to use them for our livelihood needs. The human as omnipotent consumer, that owns, controls, mutates, displaces and destroys the environment, through privatizations, colonization and now through intellectual property rights (IPRs) in life-forms, is totally against our cultures. The egocentric notion of rights that privatize and colonize natural resources is very alien to the deep sense of moral, spiritual and cultural values of our communities. Similarly, knowledge as an intellectual property of an individual or a corporation is a totally absurd proposition to our people. The Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement of the World Trade Organization (WTO) that have inscribed such alien values are based on long colonial and racist histories of the world, and must be seen as a cultural and political issue, and not merely as elements of emerging legal discourse of new global order.“[5] For these people patenting life violates religious, moral and cultural values and ought to have no place in a world which is striving for equity and justice.

Like slavery

 

In my book, Patenting Life? Stop: Is Corporate Greed Forcing Us to Eat Genetically Engineered Food, I quote from the writings of Celia Deane Drummond who is both a theologian and biologist.[6] While she argues that while GM food should be thoroughly evaluated in terms both of its impact on human health and on the environment she makes a case for not ruling out genetic engineering in principle. In general, I would agree with that opinion, though I would also include a ‘development’ criteria in evaluating the impact of Genetically Modified Organisms (GMOs) on the poor.

 

However, when it comes to patenting life, I believe that there is an overwhelming moral argument against it. In a way it is like human slavery. There is no good slavery. True, slaves were treated better in some societies than in others, but that does not mean that there is a morally, justifiable form of slavery. There isn’t. All slavery is wrong and so is patenting life. Over time, the patenting scramble will remove many life forms from common, shared ownership. Under a patenting regime, these life forms are becoming the private property of northern transnational corporations.

 

In a world of patents, life which in most religions and traditional cultures is considered as sacred and a gift from God, is now seen as a human invention, a mere collection of genes and chemicals that can be engineered by adding or deleting a gene and can be bought and sold by the patent holder during the duration of the patent. Such a reductionist, mechanistic and materialistic concept of life is at variance with the tenets of all the major religions. With patents human beings claim to have invented plants and animals and to have exclusive control over them. As the scramble to patent living forms, including human genes, gathers pace across society, it will undoubtedly devalue the meaning of life. No part of the earth will be considered sacred.

 

Life as an industrial product

 

Living organisms are not merely gene machines to be manipulated and exploited for profit. This is why after the U. S. Patent and Trademark Office patented the first animal in 1987, a group of twenty-four religious leaders issues the following statement: “The decision of the US Patent Office to allow the patenting of genetically engineered animals presents fundamental dangers to humanity’s relationship with the natural world. Reverence for all life, created by God, may be eroded by subtle economic pressures to view animal life as if it were an industrial product invented and manufactured for humans.”

 

I would argue that this is what Pope John Paul II had in mind when he wrote in his social encyclical Sollicitudo Rei Socialis (Concern for Social Matters) that Genesis 2: 16-17 places legitimate limits on humans’ use of the natural world. He writes: “The dominion granted to human beings (man) by the Creator is not an absolute power, nor can one speak of a freedom to use and abuse, to dispose of things as one pleases. The limitations imposed from the beginning by the Creator himself and expressed symbolically by the prohibition not to ‘eat of the fruit of the tree’ shows clearly enough that, when it comes to the natural world, we are subject not only to biological laws, but also to moral ones, which cannot be violated with impunity.” (No.34). Surely, the limitations referred to by the Pope must include respect for the genetic integrity of other species, and must exclude any claim to ownership of life.

 

Pope John Paul II discussed the question of genetic engineering in his World Day of Peace message for 1999. He wrote; “recent developments in the field of genetic engineering present a profoundly disquieting challenge… Life can never be downgraded to the level of a thing.” This is precisely what patenting does. It denies the fundamental notion that life is primarily a gift to be shared with others, and not something to be hoarded and treated as an inanimate object.

Scientists oposition

 

In the United States the Union of Concerned Scientists have consistently opposed patents on life. They argue that such patents make many essential products more expensive and less available. In Britain the Nobel Prize winner Sir John Sulston is opposed to patenting life. A paper written by Dr. Don Lotter describes how “academic capitalism” is distorting scientific research as corporations fund more and more scientific research at universities. But Sir John Sulston is a product of the traditional understanding of the role of universities in society where knowledge is freely shared. He taught at Cambridge and for almost 30 years he was able to study a hermaphrodite nematode, without having to seek corporate funding for his research. His painstaking research led him to discover how cells develop and die under instructions from their genes. Medical scientists who are studying how cancers develop need this kind of accurate information. This explains why an expert on nematodes shared the 2002 Nobel Prize in medicine.

 

In collaboration with Bo Waterston in the U.S., Sulston promoted the publicly funded and therefore publically accessible codification and sequencing of the human genome. Writing in the Guardian newspaper, Andrew Brown, author of In the Beginning Was the Worm, comments: Sulston believes, passionately that the information on the genome sequence must be freely available and that it is wrong to patent human gene sequences, both morally and scientifically. It is morally wrong because human genes are discovered, not invented. If you patent a discovery which is unique, say, a human gene or even just a particular function of a human gene, then you are actually creating a monopoly and that’s not the purpose of the world of patents. Indeed, the purpose (of patents) is to cause inventors to compete with each other to get better products. So mousetraps are in one category, human genes are in another, says Sulston.[7]

 

Sir John Sulston also realises that his breakthroughs and discoveries were only possible because of the work of other scientists. For example, his study of the worm’s cell lineage would not have been possible without the very detailed physical map of the worm which was produced by other scientists. Brown insists that “there is no doubt that Sulston believes that DNA patents are immoral. But he is just as keen to argue that they damage science.”[8]

 

The privatization of knowledge

 

In an August 2003 article, Dr. Sulston wrote: “From the point of view of scientific research, the chief reason is that genome sequences are about as basic as you can get in terms of biological information. Of no practical use in themselves, they provide fundamental knowledge that has to be interpreted and employed – as a tool for future research. Private sequence databases are of limited value. The consequence of dependence on private databases for fundamental information would be a severe curtailment of the scientific method.”[9]

 

The Nobel Prize winning economist Joseph Stiglitz makes the same point in the chapter on “Patents, Profits and People” in his book, Making Globalization Work. The effective privatization of knowledge which results from a patenting culture is impeding research in vital areas. He points out that “Myriad Genetics, which has patented two human gene mutations affecting susceptibility to breast cancer, has demanded that even not-for-profit labs screening for mutations pay a licence fee, thus discouraging screening. Myriad Genetics’ patent, and its willingness to enforce its patent claims, may have discouraged the search for better screening technologies since anyone discovering a new method faces the uncertainty of not knowing how much Myriad would demand in payment.”[10]

 

The novelist Michael Crichton in a speech to Congressional Aides in September 2005 claims that SARS, (severe acute respiratory syndrome) research was inhibited by concerns about who owned the genome, with three simultaneous patent claims going on… so research wasn’t vigorous… that’s scary. We’re talking about a contagious disease with a 10% death rate that spread to two dozen countries around the world. And scientists wouldn’t do research because of patent fears? We have to be out of your minds to allow this to continue.” [11]

 

The paralysis in research promoted by the patent culture is exacerbated by the sheer volume of patent applications which are applied for each year. The number of patents which have been taken out on human genes and gene sequences is enormous. HGS filed some 7,500 applications, Celera 6,500 and a single French company 36,000 patents.[12] Patenting living organisms does not serve the interest of the human or wider earth community.

A new form of colonialism

 

The theft of biological resources known as biopiracy is one of the worst outcomes of the patenting legislation which now has a global reach through the Trade Related Intellectual Properties (TRIPs 27.b) of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). In recent years, biotechnological companies have been collecting genetic material from the Majority world. They have sought patents for this material in Minority World countries and in the process have made huge profits.

 

Patenting will intensify and exacerbate the plunder of the natural resources of the Majority world. Microorganisms, plants, animals and genes from indigenous people have been patented for the production of pharmaceuticals and other products. It is simply larceny of the highest order to design an international patenting mechanism which will force Majority world countries to pay royalties to Minority world corporations for food or medical products derived from their own natural resources.

 

Most of the germ plasm for food crops is held in seed banks either in the Minority world or controlled by the Minority world if they are located in the Majority World. To appropriate this through patenting or Plant Variety Protection (PVP) legislation, constitutes a new form of colonialism. This time it is not merely the gold, silver, precious stones or labour of people that is being colonized, but life itself. Biotech scouts have used the knowledge that indigenous people have accumulated about their habitat over the centuries in their search for plants or animals which may have an agricultural or medicinal use. As we will see below, they then take out patents on these organisms.

 

The inheritance of generations

 

The immorality of such behaviour is magnified even further when one remembers that the species and genetic diversity within crops such as rice, maize and potatoes is available to us because countless generations of peasant farmers and tribal people protected and propagated these vital crops. The Indian scientist and activist Vandana Shiva points out that: “The common pool of knowledge has contributed immeasurably to the vast agricultural and medicinal plant diversity that exists today. Thus the concept of individual property rights to resources or to the knowledge, remains alien to the local community. This undoubtedly, exacerbates the usurpation of the knowledge of indigenous people with serious consequences for them and for biodiversity conservation.” [13]

 

The patenting of the Neem (Azadirachta indica) tree which is found in India and all over the tropics illustrates what is happening. Because many parts of the tree have anti-microbial properties it is known as the “wonder” tree.  In ancient Sanskrit it is called sarva roga nivarini meaning the curer of all illnesses. In Hindu mythology it is considered to be of divine origin, while for the Muslims of the subcontinent it is as shajar-e-mubarak or the blessed tree.

 

Numerous studies on the many beneficial properties of the tree had been conducted in India since World War II. However, no one ever thought of taking out a patent on the tree’s chemical composition because Indian Law did not allow patents on medical or agricultural products. In 1971, US timber importer, Robert Larson, noticed the different uses of the neem during a visit to India. As a result, he began importing neem seed to his company headquarters in Wisconsin. Over the next decade he conducted safety and performance tests upon a neem extract called Margosan-O and in 1985 received clearance for the product from the US Environmental Protection Agency (EPA). Three years later he sold the patent to the multinational chemical corporation, W R Grace and Co. Since 1985, over a dozen US patents have been taken out by US and Japanese firms on formulae for stable neem-based solutions and emulsions and even for a neem-based toothpaste. As a result of holding the patent, the price of neem seeds rose dramatically. What had once been a free resource for people in Indian villages now has become a scarce commodity.

 

In 1994, the European Patent Office also granted a patent on a neem oil product. However, after a ten year battle the patent was revoked. The annulment was based on the fact that the fungicidal properties of the neem seed were known in India for generations. Therefore the patent did not comply with a basic requirement for patents that the innovation should be new. While this was a significant victory for the anti-patent movement the legal action was costly. Acquiring a patent is relatively inexpensive for corporations, while fighting them is expensive. The real goal of a campaign must be to revoke TRIPs 27.3 b and prohibit patents on living organisms.

 

Life as a private preserve

 

 

 

Until recently, it was not possible to patent living organisms. The decisive change came in the 1970s when corporations began a legal campaign to patent crops. Initially, requests to patent living organisms were rejected by the US Patent and Trademark Office (PT0). However, in a landmark case, Diamond vs Chakrabarty, in June of 1980, the US Supreme Court in a five-to-four majority, decided that life was patentable. The ruling stated that the “relevant distinction was not between living and inanimate things, but whether living products could be seen as “human-inventions”.[14]

 

One cannot exaggerate the momentous nature of this decision. It constitutes a break with the way most cultures have viewed life down through the ages. The philosophical, ethical and legal basis on which the decision was reached is at variance with most of the cultural, moral and religious traditions of the planet.

 

The lawyer Andrew Kimbrell believes that the US Supreme Court’s decision has “transformed the status of the biotic (life) community from a common heritage of the earth to the private preserve of researchers and industry”. He points out that the ruling has set the stage for increasing competition among multinationals, as they vie for ownership and control of the planet’s gene pool, patenting everything that lives, breathes and moves. [15]

 

Patents create monopolies

 

Global corporations, spearheaded by the giant agribusiness company Cargill, which is not even a public company, lobbied governments to incorporate the U.S. position on patenting of life forms into the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) which concluded in 1994. The resulting GATT Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) obligated all GATT signatories to adopt minimum intellectual property standards for plants, animals, micro-organisms and biological material, including genes.

 

According to Joseph Stiglitz, “TRIPs reflected a triumph of corporate interests in the United States and Europe over the broader interests of billions of people in the developing world. It was another instance in which more weight was given to profits than to other basic values – like the environment or life itself.”[16] Stiglitz also dismisses the claim that patents promote economic growth. “However, the contention that stronger intellectual rights always boost economic performance is not in general correct. It is an example of how special interests – those who benefit from stronger intellectual property rights – use simplistic ideology to advance their causes.”[17] Patents create monopolies. According to Stiglitz, “the inefficiencies associated with monopoly power in the use of knowledge are particularly serious, because knowledge is what economists call a “public good”; everybody potentially can benefit from it; there is cost of usage.[18] The importance of the “common good” in Catholic Social Teaching rests on a similar understanding, that promoting caring communities is essential for human well-being.

 

Patenting life is a fundamental attack on the understanding of life as interconnected, mutually dependent and a gift of God. It opts instead for an atomized, isolated understanding of life. The Bible also recognizes that humans are companions and stewards of other creatures in the community of the living (Gen. 2:15 – 17). God settles the ‘man’ in the Garden and invites him to cultivate it and care for it. Certain limits are put on man’s use of the natural world. God cautioned humans: “You may eat indeed of all the trees in the garden. Nevertheless, of the tree of knowledge of good and evil you are not to eat, for on that day you eat it you shall surely die” (Gen. 2: 16- 17). In his encyclical on social justice, Sollicitudo Rei Socialis, Pope John Paul II interprets the Genesis 2: 16-17 text as placing limitations on human misuse of the natural world. We don’t and should never claim to own nature. This is God’s prerogative, not ours.

 

 

 

 


[1] www.enwikipeda.org/wiki/Percy_Schmeiser downloaded June 24, 2009.

[2] Interview with Percy Schmeiser. “Seeds of Discontent,” WorldWatch, January/February 2002, pages 8 – 10.

[3] Jeremy Rifkin,  The Biotech Century, Victor Gollancz, London, 1998, page 59.

[4] Andrew Kimbrell, The Human Body Shop, Harper, San Francisco, 1993, page 200.

[5] SANFEC’s Statement of Position on TRIPs 27.3(b). www.home.intekom.com/tm_info/rw90406.htm~03 (downloaded on June 26th 2009)

[6] Sean McDonagh, Patenting Life? Stop!, Is Corporate Greed Forcing Us To Eat Genetically Engineered Food? Dominican Publications, Dublin, 2004.

[7] Andrew Brown, “One Man and his Worm,” The Guardian, October 9, 2002. www.guardian.co.uk/g2/story/0,3604807110,00.html

[8] Ibid page 4.

[10] Joseph Stiglitz, 2006,  Making Globalization World, Penguin, London, page  114.

[11] Michael Crichton. www.whoownsyourbody.org/crichton-congress.html downloaded on June 26, 2009.

[12] Ibid page 114.

[13] Vandana Shiva, “the Enclosure of the Commons,” Third World Resurgence, August 1997,  page 6.

[14] Andrew Kimbrell, The Body Shop, Harper, San Francisco, 1993,  page 193

[15] Kimbrell, op.cit. p. 200.

[16] Joseph Stiglitz, 2006, Making Globalization Work. Penguin Books, London, page 105.

[17] Ibid page 106

[18] Ibid 109, 110.

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