Patenting the Planet

By Shand, Hope | Multinational Monitor, June 1994 | Go to article overview

Patenting the Planet


Shand, Hope, Multinational Monitor


OVER THE LAST DECADE AND A HALF, the biotechnology industry has scored an impressive series of legal and policy victories, progressively expanding the scope of intellectual property laws. After gaining patent protection in the United States for genetically engineered micro-organisms, plants and then animals, the industry turned its attention abroad, and began working with the U.S. government to secure those market protections around the world. The success of the joint industry-U.S. government effort has allowed a handful of corporations who dominate commercial biotechnologies to stake far-reaching claims of ownership over a vast array of living organisms and life processes.

Proponents of patenting argue that it is designed to promote innovation by rewarding inventors of new technologies and that it is essential to enable companies to recoup their research investment. But there are clear winners and losers in the grab for life patenting. Biological resources have profound economic and social importance. As industrial patent systems extend across the globe, monopoly control over biological products and processes jeopardizes world food security, undermines conservation of biological diversity and threatens to further marginalize the world's poor.

Redefining human "invention"

The patenting of life forms represents a radical departure from the traditional scope of industrial patent law. In addition to the basic criteria for patenting -- novelty, usefulness and non-obviousness -- there is a well-established doctrine in patent law that "products of nature" are not patentable. With the advent of genetic engineering, however, it did not take long to redefine what is considered a human "invention" and legally patentable.

Over the course of a single decade, the U.S. government took giant steps to accommodate the corporate push to patent life. The U.S. Supreme Court ruled in the landmark 1980 case of Diamond v. Chakrabarty that genetically engineered microorganisms are patentable; the U.S. Patent & Trademark Office ruled in 1985 that plants (previously protected only by plant breeders' rights) could qualify under industrial patent laws; and the U.S. Patent & Trademark Office ruled in 1987 that genetically engineered animals are also patentable. As a result of these decisions, virtually all living organisms in the United States, including human genetic material, became patentable material, just like any other industrial invention.

But giant biotechnology companies want to sell their products across the globe, not only in the United States, so the United States and other industrialized nations have lobbied aggressively in recent years for a single, international intellectual property standard, based on the U.S. model. Their efforts bore fruit in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).

Historically, intellectual property laws have been largely left to governments, with different nations tailoring their patent laws to meet their own needs. Most developing nations (and some European countries) chose not to recognize patents on food, pharmaceuticals or products that meet other basic human needs.

In the GATT Uruguay Round, the United States and other industrialized countries raised intellectual property as a trade issue, pushing for "harmonization" that would bring everyone else's laws in line with theirs. The resulting GATT Trade Related Aspects of Intellectual Property (TRIPs) agreement obligates all GATT signatories, including developing countries, to adopt minimum intellectual property standards for plants and microorganisms. Under the threat of trade sanctions, many developing countries will be forced to adopt intellectual property systems that may be ill-suited to their needs and level of development.

The GATT TRIPs agreement has far-reaching implications, giving multinational corporations exceptional power and control in new markets and allowing them not only to collect royalties, but to set conditions under which developing nations can gain access to new technologies. …

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