WOS 1 / Proceedings / Panels / 10. "Intellectual Property" and Public Domain / Benny Härlin / skript

Benny Haerlin

The Source Code of Life: Monsanto Domain or Public Domain

What I want to talk about today is the question of should genes, should life be patentable. Should it be private property or not? Obviously, my idea is that it should stay free, and become even more free, by a better understanding of what life is. Greenpeace, in its attempt to not only stop life from being patented, but also in its attempt to stop GMOs (Genetically Modified Organisms) from being released into the environment, which is actually our main focus at this moment, has to do with one famous company, Monsanto, and their new slogan is: "food, health, hope." This is obviously what Monsanto promises to deliver. On the other hand, this is something that Monsanto obviously also wants to own. This is one of the problems, I think. I'll go very briefly through some basics of patenting.

What is a patent? It is an exclusive right to exploit an invention and the exchange between the inventor and society. That's the basic idea: the inventor describes his invention in a way that allows 'any person skilled in the art' to reproduce and use the invention. The prerequisites for a patent are that the invention must be new, it must not be obvious, and it must be useful. In some countries, it must not contradict basic ethical principles, and I think, an important point to remember for the rest of the discussion is that you can only patent inventions and that you cannot patent discoveries. This is the basic idea of patenting.

What can be patented these days in the field of bio technology? The U.S. Supreme Court phrased it in a very important decision concerning Jack Chakrabarty's genetically engineered micro-organisms, in this way: you can patent "anything under the sun made by man." In practice, at the moment, this means that you can patent methods to manipulate, to extract, to analyse, to produce, and to apply biological material. You can also patent genes -- meaning the DNA code -- if you can describe it precisely, isolate it, and ascribe a certain functionality to it. You can also patent micro-organisms even if you cannot precisely describe them, and the trick here is that the micro-organisms are deposited in a public depository. You can also patent plants, so far, mainly sexually reproducing plants which contain certain genes. You can patent animals, and you can also patent parts of humans.

There is a second type of intellectual property protection system, that is called Plant Variety Protection (UPOV, Union for Protection of new Varieties of Plants, since 1961). Ist rules are somewhat different and probably more similar to this semi-commercial type of open source. This grants the plant breeder an exclusive right to commercialise a certain plant variety, but it does not give him the right to prevent others from using his invention, if you wish, his newly developed variety, and it does not prevent others from reproducing the seeds. You can protect plant varieties only if they are proven to be uniform, stable, well described and tested. You have to prove again that they are new and considered to be superior to existing varieties, and then they are enlisted in national and international variety catalogues. The dirty trick about this Plant Variety Protection system is that in most countries like in Europe or in the U.S. where commercial seed merchandise is of importance, you can only commercially trade seeds which are enlisted in these national variety catalogues. Other seeds, which are not completely uniform and stable, such as the type of seeds that organic farmers use today, cannot formally be traded. This is a very important backlash of this type of protection system.

Greenpeace thinks that there should be no patents on plants and animals, and there should be no patents on DNA. Why? First, we think it is immoral. We think that life should be respected and we believe that life has a value in itself and, therefore, cannot be considered as private property. The second point is that when you look at what is being patented these days in the field of genetic engineering and bio technology, we believe that these are not real inventions, these are mainly discoveries. The genes have been around, most of them, for millions of years. The sheer fact that somebody has been able to sequence and describe them in a way that has not been possible before does not constitute any kind of creative intervention. It is simply discovering and not inventing anything. In a social sense, we believe that patents on life forms and on DNA threaten the free exchange of knowledge and the development of science. We believe that they threaten the freedom and independence of farmers. And we believe that they tend to shift control even more to the side of corporations and away from farmers.

A Brief History of Bio-Patents in the USA

  • 1979: First GE patent issued
  • 1980:Chakrabarty decision: Micro-organisms
  • 1985:Higher plants included (ex parte Hibbert)
  • 1987:Higher animals included (a polyploid oyster first)
  • 1988:First mammal patented (Harvard/DuPont's oncomouse, by now over 100, thousands filed)
    Moore vs. UCA lost: No rights on his own cells
  • 1996:Surgical methods limited subject to patenting

I'll give you a very brief history of bio patenting in the U.S., which is very brief because it only started in 1979, when the first, real genetic engineering patent was granted. In 1980, as I said, there was a landmark decision by the U.S. Supreme Court, it was voted 5 to 4, so it was a close vote, that a genetically engineered micro-organism was actually an invention and something that somebody could own in the way of a patent. That was the Jack Chakrabarty case. Five years later it was decided that also higher plants can be patented. In 1987, the first animal, an oyster, was patented. In 1988, the first mammal, a mouse, the so called Harvard, or Dupont Onco Mouse, was patented. It was a mouse that was designed to be especially susceptible to a certain form of cancer in order to be used as a test kit. There are many such mice in labs today, but this was the first that was actually patented. Today, over a hundred different mammals are patented and thousands of applications are pending.

Also in 1988, an important case was decided in California where a person who suffered from a certain type of cancer, leukaemia, had the doctors who had taken his blood and patented parts of his blood, taken to court. The man said 'you cannot do this, you cannot patent my blood.' It was decided that the doctors could, and Mr. Moore lost his case. He had no right over his own cells. The intellectual property rights of the doctors, who actually made a drug out of this, was more important. In 1996, another important landmark case, for the first time in the U.S., certain surgical methods were subject to patenting. There are limits to it, but up until then it was clear that medical methods, the knowledge of doctors could not be subjected to patenting. This has been eroded over the years, and in 1996 there was an formal decision on this for the first time.

This is an old chart, unfortunately it ends in 1995, that gives you an overview of the development of biotech patents. And this is another interesting chart that will have to be continued in an exponential curve actually. It shows you how many patent suits have been filed, meaning how many times one company goes against another and says 'this is my DNA and you cannot use it.' This is big business these days in the U.S. You probably have heard of the last major case where Rhone Poulenc won a case against Dekalb I believe, and was granted 65 million dollars because it was said that the BT-corn they developed had used some knowledge of Rhone Poulenc without informing him. So there is a whole generation now of patent lawyers who make big business, and big money out of patenting already. Patent lawsuits are now also frequently the reason for corporate take-overs. It appears to be safer and probably even cheaper to buy the company than it is to go through a lawsuit which can take ten years before it is resolved.

What are the more general implications of this new patenting gold rush in science? I think the first implication for many scientists is the new rule, 'don't talk before you have filed the patent.' That means don't talk freely even in your own university, don't take your results to conferences and symposia, don't present your results before you have talked to your lawyer and your lawyer has checked what can be patented out of it. Another quite sad implication that has come out of this is, 'check the patent situation before you start to get curious.' That means don't start research and development in areas that are already fenced in by patents of other people. You might end up after five or more years of intensive work realising that in order to develop a product you would need the license of a competing company or even a competing colleague, and if you don't get it, your research has been worthless. This is an obvious implication which we believe severely impedes the development of science.

Also, especially in the field of genetic engineering, and this also has to do with the science structure in this field, I think there is no other scientific discipline that is so dominated by corporations than genetic engineering. Many scientists these days ask themselves how much their research is worth in terms of intellectual property. So this is a kind of new currency for scientific fame. Another clear message to scientists is to 'claim property rights on whatever you can.' It is amazing how many property claims are made even if they are denied later. 'First try whatever you can.' Obviously, many patent offices even though they try to keep pace with the developments, especially at the beginning of this era were simply not able to distinguish what is new, what is useful, and what is not, and there are a lot of junk patents around, especially in genetic engineering. Another message that comes from this patenting gold rush is 'think in terms of products, don't think in networks, don't think in processes, don't think in contexts, think in products.' 'Think of research in terms of what kind of product it will result in.' Obviously, the general currency for corporate funding of public research these days are patents. This is basically the agreement: 'we give you money and we have the fist right to any patents that come out of the research you are doing in this field.'

Very briefly, some implications in the field of medicine. Again, it clearly increases the product orientation versus the method orientation, and this has a paradigmatic implication on how medicine is understood in a much broader sense. Again, it fences off research in certain fields which are already under patent claims. For example, if you know that a competing company has a patent on certain DNA of a disease, and you are doing research in this field, scientists really must think twice whether they can really get something out of the work in the end. So it is a businesslike approach that through this patenting enters into medical research. Another implication that is especially important for small companies is that the risk of being taken to court for patent infringement is simply too high to invest in certain research and development, even if you feel like you have a good case. The sheer fact that a big company like Novartis puts ten patent lawyers on your heels will probably deter many companies from taking such research and development further. They will probably rather end up selling what they have to the big companies. Patenting has a tendency to further monopolise research and development.

And finally, it expropriates traditional knowledge. You have probably heard of cases of medicinal plants that have been 'discovered' by western researchers, usually in southern countries. Usually, the local indigenous people have explained exactly what these plants do. Then the researchers go home and file a patent on it and describe it in a new way, in a way that the indigenous knowledge would never have thought of. Ultimately, it could come to the point where the same people who explained the use of the plants to the researchers could have to pay a royalty to use the plants.

Here is an example. Unfortunately these nice four guys you cannot see as nicely as I could see them earlier today on the Internet [yes, you can. the html'izer]. This is a company that is called Human Genomic Sciences (HGS) and on their website, they boast that they have filed more than 6,300 newly discovered human genes. They took them all to the patent office and said that's ours, ours, ours, ours. One of the more disputed patents that they have applied for is on a bacterium that causes meningitis. Now if anybody wants to work on a cure or especially a vaccine for this meningitis, they can only do so with the permission of HGS. This clearly shows the perversion of this concept, in the end you simply patent the diseases, and everyone who wants to work on a cure will have to pay a royalty.

I mainly wanted to dwell on the question of what implications patenting has in agriculture. Firstly, it privatises a public good. Seeds have been around since the Neolithic age. People have developed agricultural skills, have developed better and better seeds, and it was always a public good. You could not own your seeds. You had to take care of them. The tradition is that in certain regions, certain seeds and varieties are developed and maintained and taken care of. But there was never the idea that you could have an exclusive right over them, and this is what patenting of DNA does these days. This helps to foster a fundamental shift from control of the land by the farmer to control of the whole agricultural production process by a very small number of big corporations. It also gives genetically modified organisms, obviously, an economic incentive over traditional seeds. Because it is easier to patent a GMO, companies have a clear incentive to use GMOs and not traditional breeding methods. Once again, it expropriates and devaluates traditional and non-GE knowledge.

Here is a *list of the top ten agrochemical companies in the world. You might be familiar with most of them. These companies, more or less all of them, have over the past ten to fifteen years bought up more than two thirds of the entire commercial seed business in the world. There was a rush that started in the eighties, and when you look at their turnover and keep in mind that the main money they make is from agrochemical, from pesticides, from fertilisers, from chemical inputs into agriculture.

And *here are the top ten seed companies that are left today. You see the same names, and you can also see that the revenue is much lower, by a power of magnitude actually. This is one of the reasons that the chemical companies could buy the seed companies so easily. Now, the concept is to merge the seed business and the agrochemical business into one package. The first genetically engineered organisms that are commercially available now are exactly these type of things: herbicide-resistant plants like Roundup Ready soybeans. You can spray the herbicide on these plants and they will not suffer but everything else in the fields will die. This is the concept behind it.

These are the three companies which already have primary GMO sales in the agricultural field. There you can see that Monsanto is obviously leading the pack. This is more expressing an advance of two or three years of commercialisation than the real power. AVENTIS which is AGREVO which used to be Hoechst and Rhone Poulenc, as well as Novartis, have probably nearly as many GMOs in the pipeline as Monsanto but have not been able to market a lot of them, yet.

"Each farm entity purchasing Roundup Ready soybean seed must agree to the responsibilities associated with growing RoundupReady soybeans."

And here is the result of this concept, this is a quote from the Monsanto technology agreement that every farmer in the U.S. who grows Roundup Ready soybeans has to sign. It says that the farmer cannot save any of the Roundup Ready soybeans for replanting or for sale as seeds. It says that the farmer must use Roundup brands from Monsanto on these seeds, and of course, the farmer must pay a technology fee for all of this to Monsanto. Monsanto is dead serious about this. They have even hired private detectives to investigate if farmers are complying with this technology agreement, as well as asking neighboring farmers and local herbicide dealers who sell the Roundup products to whom they have sold the products. Monsanto has taken the farmers to court. If they catch them, this is devastating for a farmer. Usually they settle out of court and the settlement includes a fine that the farmer must pay to Monsanto, and it includes the destruction of his harvest, and it includes that Monsanto has free access to his land for a few years for further inspection.

Now, the next point that I marked here is 'Solidarity with Percy Schmeiser!' Who the fuck is Percy Schmeiser? Percy Schmeiser is a sixty year old farmer in Canada who has also been taken to court by Monsanto. But he says he has never used Monsanto's Roundup Ready products, Canola in this case, but the GMOs they found in his field are the result of cross-pollination from neighboring fields. So this is a new and interesting development. Monsanto says this is not possible and that they can prove these are their GMOs. He has to go to court. Percy Schmeiser is a brave guy, he did not give up, he is standing in court now, and if you are interested in paying into the Percy Schmeiser solidarity fund, please talk to me later.

The next step in this development is the so called Terminator technology. This is a technology which has also been patented in the United States under patent number 5,723,765, which has been developed by a company that Monsanto has recently bought, and by the U.S. Department of Agriculture. This technology allows one to develop seeds that are unable to germinate in the second generation. So this is the perfect tool. You don't need to control it anymore because it won't grow in the second generation. Interestingly, this Terminator technology, even though it's still far away from the market, was probably the one drop that made the glass spill over. In many parts of the world, farmers were really outraged over this technology, and the Rockefeller Foundation which is actually quite in favour of genetic engineering and of corporate control of the food chain has urged Monsanto to drop this Terminator technology, because they believe it will spoil the whole party. It will be so terrible for Monsanto's image, especially in developing countries, that they think it is smarter not to use it, at least for the next five to seven years. Monsanto actually agreed, which is an interesting development, and said they won't use it for the next five years and that they will have a full blown dialog with whoever, about the implications and so on and so forth. This shows that farmers don't buy everything from Monsanto, at least not yet.

So why is Greenpeace, a Save-the-Whale organisation, so interested in this issue of patenting? As I said earlier at the moment, we are basically fighting against the release of GMOs. You could ask why we bother whether they are patented or not if we are against them anyway. There are two main reasons. The first is that we have the impression that this is nothing that is confined to GMOs. Actually, patenting of DNA has already gone deep into the breeding business. Patenting of DNA also means, for example, corporate control of testing devices, it means corporate control of further breeding developments. So it is basically the currency for corporate control of food production. We believe that it is not a good idea to have in the end as many food producing companies left in the world as we have car producing companies today. This would really be a threat to the environment, as well, because these companies have a different logic than farmers. They have the logic of industrialising agriculture in a way that I think is quite terrible.

It is interesting that just in the last days, it was revealed that Monsanto's Roundup Ready soybeans yield less than conventional soybeans. Monsanto has always said that they are better and have improved yields and so on, and now some 8,200 tests all around the United States have been done, and it looks like Roundup Ready soybeans yield an average between 5 and 8 percent less than conventional soybeans. Still the farmers buy it. Why do they buy it? Because it is more convenient. The farmers are actually losing money, but they feel that they have to stick to the technological development. And, it is much easier to control the weeds with this one Roundup concept than with integrated pest management methods. So what happens in this process, as well, is an expropriation of knowledge of farmers. The knowledge goes into the seeds, and the seed is owned by the company, and it comes with a manual and that's it. We think that this is a major threat to the environmental development in the world, because if we leave the knowledge about agriculture to a few companies with this concept, no good can come of it. This is the kind of centralisation that makes one mistake a big mistake.

The other reason is that we feel that the patenting of DNA and the patenting of life corrupts science in a very profound way. I've been arguing against a European patent directive for many years, which has been approved finally in 1998, though we were able to stop it in 1995. It was all about can you patent plants, can you patent DNA, or not. In the end we lost. One of the reasons we lost was because the industry, which is also very strong in the pharmaceutical sector, actually organised patients' organisations who came there, to the European Parliament, literally in their wheelchairs, asking for patents for life. Their argument was, if you don't allow these companies to patent what they develop, then they won't develop cures for us. This is a new type of dependency, this is a new type of power emerging in this field that should be really frightening to all of us. That is my contribution. Thank you.


(Transkription Diana McCarty)

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