Patenting
practices
A
wider range of Intellectual Property Rights and broad patenting
practices will adversely affect innovation, claim Dr Syamal Krishan
Ghosh and Dr CK Guha Sarkar
The
present century is being termed as ‘The Age of Biology’, as products
derived from biological materials are expected to replace those
made from metals and chemicals. The genes of living organisms are
the basic raw materials of the new biotechnology era. ‘Gene Rush’
is the new slogan of the present world in the scramble for future
profits. Achieving economic objectives requires an optimal combination
of protection mechanisms but that can not be fulfilled without preservation
of biological diversity, farmer’s rights, the environment, as well
as without ensuring food and health security.
Patent
is the legal right provided to inventors to claim exclusivity of
their novel idea regarding its commercial application for a limited
period. The Intellectual Property Right (IPR) acts as a mechanism
like the so-called ‘freedom to operate’ within a commercial scenario.
But the extension of patents to life forms has created confusion,
controversies and restricted the scope of research. As the plants,
animals and existing living organisms are public property and they
should not be privatized through patents and they are to be granted
only on human inventions, not on discoveries.
In
an economy increasingly based on ideas, patents are the currency
of creativity. The patent system rewards innovation by giving inventors
temporary and exclusive rights to profit from their ideas. But over
the past decade, the attraction of that monopoly has triggered the
hype of patent filings. Companies have stepped on everything from
bits of software code to generic business practices.
The
IPR is the legal right of the inventor and granted to the inventor
to claim exclusivity over the innovation over a period of time and
to gain economic benefit from its commercial application. Initially,
the IPR regime was developed to reward inventors for their inventive
steps in the field of mechanical and chemical innovations and to
act as a driving force towards rapid industrial growth. How patenting
works
Patents
are also the contracts made between states and inventors, for a
limited period of time, in return for the disclosure of their invention.
In principle, both the inventor and the common public should benefit
from this process. Patents also provide exclusive private rights
to prevent third parties from unauthorized copying of the claim.
The idea of patenting was promoted with the view to stimulate investments
in research and ensure wide distribution of the benefits from such
research. But the biotechnology industry, in order to reap benefits,
called for an extension of patents on biotechnological inventions
of plants and animals, an area which is extremely wide and not really
clearly defined. Even though patenting discloses the innovation
but broad patenting in the biotechnological arena acts as a barrier
rather than a stimulus for further innovations. A dangerous wave
of privatization of all biological diversity is presently taking
place under the label of IPR, i.e. patenting of plants, animals
and DNA.
However,
over the last decade patent claims, on plants and animals as well
as genes and parts of human bodies, have been continuously extended
by the industry and patent offices of industrialized countries.
By patenting life forms, the genetic engineering industry gains
control not only over its own genetically engineered organisms,
but also over our food chain and ultimately over the planet’s own
genetic heritage. Patents are to be granted only on human inventions,
not on discoveries. Existing living organisms, like plants and animals
as well as their genes, are of course no-one’s invention and should
therefore, never be patented and put under private control.
Current
scenario
a)
Agriculture
Patenting
allows the industry to take control of and exploit organisms and
genetic material as exclusive private property that can be sold
to or withheld from farmers, breeders, and scientists. Technology
agreements and fees on seeds deprive farmers of their generations-old
right to replant and exchange their seeds. Similarly broad, unsubstantiated
patent claims on DNA prevents scientists from research in areas
that have already been patented by big companies. Patents on life
forms have created bio-piracy as a new form of colonialism.
IPR
issues have become a new element in the seed industry as transgenic
seeds make use of several technologies for their development. Even
in cases where a technology is novel and patented, it may be dependent
on earlier developments and so cannot be freely used even by the
inventor. The IPR can be defined, as legal access to all technologies
required to launch a product. As the progress is on for the development
of transgenic crops having both input and output traits, the IPR
issues will become much more complicated. In general the development
of transgenics involves the rights related to plant variety protection
(PVP) plant patents, patents on transformation technology, selectable
marker employed, the target gene, the promoter and the regulator
proteins among others. Any single event can block the commercialization
of the product as well as result in a cost increase for the developing
seed business. Current restructuring of the seed industry is technology
driven and influenced by IPR issues. To become a winner a company
has to develop quality products and be well equipped to handle IPR
issues.
Since
1985, multinational companies have been pushing the boundaries of
patent laws even further, staking territorial claims to cover entire
species of plants and animals, consolidating their dominant position
as a means to block research and competition. According to the Wall
Street Journal, in the United States at least one company has been
created whose main business is buying up broad patents and then
suing other companies for alleged plagiarism and misuse.
In
the recent past a series of patents have been granted which are
extremely wide in their scope. By 1990 (Hobbelink, 1991), 50 per
cent of plant patent applications in Europe was coming from just
eight multinational corporations, and a third from just three companies:
Monsanto, Ciba-Geigy and Lubrizol. Some of the examples are as follows:
- Agracetus
was granted patent on all genetically engineered cotton plants
in US in 1992, and again during 1994 the same company was granted
patents on all transgenic soybean plants in Europe.
- A
patent has been issued to Sungene in the US for a variety of sunflower
which has a high oleic acid content. Not only does the patent
include the genes involved in oleic acid content, but also to
the characteristic itself.
- Mycogen
obtained a patent on a method to design synthetic genes, covering
all plants. A patent has been taken out in Europe by the American
Company Mycogen, which covers the insertion of ‘any insecticidal
gene in any plant.’
- Plant
Genetic Systems, a biotech company now owned by Aventis, has been
granted a patent in the US for all genetically engineered plants
containing the Bt toxin.
It
is extraordinary that a company can make a single genetic alteration
to a plant, and claim private ownership to it as their invention,
when the very plants that are being engineered result from thousands
of years of careful selection and breeding by farmers around the
world.
b)
Animals
- In
1987, a Harvard biologist was granted the first patent for an
animal. The oncomouse (Kimbrell, 1997) was genetically engineered
to predispose it, and its entire offspring to develop cancer,
so they can be used for research. The patent on oncomouse, which
is licensed to DuPont, extends to any other animal genetically
engineered to contain genes that cause cancer.
-
By 1997, over forty animals had been patented, including turkeys,
nematodes, mice and rabbits. Hundreds of other patents are currently
awaiting approval, including patents on pigs, cows, fish, sheep
and monkeys.
- Tracey,
the sheep has human genes which were introduced into her mammary
glands so that she produces a human blood-clotting agent called
alpha-1-antitrypsin in her milk. The company, Pharmaceutical Proteins,
holds the patent. Tracey’s success was said to provide “a strong
impetus to the further exploitation of transgenic sheep as bioreactors
for the production of large amounts of pharmacologically active
proteins”.
- Pharmaceutical
Proteins, have also applied for a broad patent covering all cloned
mammals.
contd
