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Patenting life: Wait a minute! Who made it?

Only `commerce' could think of privatising life forms. An African tribal-doctor might wish to keep his remedies secret but no one would deny others the chance to emulate him. Indians know trees by their medicinal properties, and the idea that anyone should pay a fee for using these properties is inconceivable. It has been axiomatic that anyone in the world can use the resources of nature -- until 20 years ago.

It happened in the US. A genetically engineered micro-organism, designed to consume oil spills, provided the test case. The Patents and Trademark Office (PTO) rightly rejected the application, arguing that living things could not be patented under US law. But at appeal the patent was allowed by a narrow majority on the basis that the micro-organism was "more akin to inanimate chemical compositions than to horses and honeybees". The PTO, still believing that patenting life forms was wrong, appealed to the Supreme Court, which upheld the patent in 1980. But four of the nine judges strongly opposed it and it was nearly rejected.

Then in 1987 the PTO did an astonishing about-turn. It issued a ruling that all genetically engineered living organisms can be patented -- including human genes, cell-lines, tissues, organs, and even genetically altered human embryos and foetuses. This ruling opened the floodgates.

Patented things have to be `novel, non-obvious and useful'. No one has ever argued that oxygen or helium, for example, however non-obvious and however useful, can be patented just because a chemist has isolated, classified and described their properties. These elements are not novel; they exist in nature. But with total lack of consistency the PTO now holds that anyone can claim a human invention simply by isolating and classifying a gene's properties and purposes, even though these are not novel, but pre-exist in nature. No molecular biologist has ever created a gene, cell, tissue, organ, or organism de novo.

The first mammal to be patented was a mouse with human genes. The team that created Dolly the sheep applied for a broad patent to cover all cloned animals. Then, a businessman, John Moore, received hospital treatment for a rare form of cancer; later he found that the University of Los Angeles had patented his body parts and licensed them to a pharmaceutical company at a value of $3 billion; the California Supreme Court ruled that Moore had no rights over his own body tissues. A broad patent gives Briocyte worldwide ownership of all human blood cells from the umbilical cord of babies, for pharmaceutical purposes, even though the company has only isolated and described the blood cells.

Broad patents have caused a furore. Patenting of the properties of the Neem tree and Basmati rice by American companies has provoked violent anger throughout India. An American professor failed in his attempt to patent turmeric for medicinal purposes, but it cost India $500,000 to fight the case. Papua New Guinea was furious to discover that the US government had patented cell lines from its citizens. The arrogance of this new colonialism is breathtaking. Patents take no account of the transformation of wild grasses, tubers etc into crops by indigenous people over millennia. They literally allow northern companies to hijack knowledge that has been used by all -- even nature itself -- and charge others for using it. But poor nations fear sanctions if they do not adopt American practice on patenting.

The World took a wrong turning in America 23 years ago. It seems unlikely that the UK government will put principle above commercialism. But India might declare, unilaterally, that the fundamental elements of life are global commons and ought never to be up for sale to private interests at any price. All life knowledge, at present in private hands, would then be freely available on the sub-continent. Perhaps India would become the powerhouse of the life-sciences because of this free availability of knowledge.

Excerpted from The Little Earth Book by James Bruges, published by Alastair Sawday. To order a copy or for further details visit www.littleearth.co.uk

  Free trade: Comparative advantage for the corporations
  Intuition: Common sense, imagination and morality
  Patenting life: Wait a minute! Who made it?
  The Terminator: Corporate control of food for profit
  Population: More or less
  Pests and weeds: Biotechnology for profit, a nightmare
  A citizens' jury: The locals know what aid they need
  Imperial tribute: Why the rich are rich and the majority poor
  The WTO: Power in a moral vacuum
  Biomimicry: Science's exciting new frontier
  Water denied: A crime against humanity
  The first MNC: Little has changed
  Feeding the world: There is no shortage of money or food
  Ecological footprints: The rich wear big boots