The patenting of life forms and knowledge

Najma Sadeque
18-04-06

 

Can either conscience or common sense accept that a single party can
claim exclusive ownership through patents over things derived from nature
or the collective knowledge of centuries that once belonged to all people?

When a creative person writes a novel, or composes a piece of music, or makes a great painting or other work from imagination and personal knowledge, it is obvious that he or she has ownership over that particular creation, and should not only receive all credit for it but also just remuneration for it if commercialised. That is why the concept of 'copyright' was invented. That is how, for example, the movie industries make hundreds of billions of dollars by making scores of copies of their films for the world market which copyright gives them, or whoever they authorise, the exclusive right to do so. - "A copyright is an exclusive right conferred by a government for a specified period to the creators of literary or artistic works, such as books, maps, articles, drawings, charts, photographs, musical compositions, motion pictures, recordings or computer programmes."
But what if someone obtains exclusive rights over something that has not been created by human imagination or ingenuity but is something that already exists in nature and the item has simply been separated and identified from among nature's trillions of offerings? For example, an American company called BIOCYTE holds the patent on all umbilical cord cells from foetuses and newborn babies! It means that even if other scientists or companies from other parts of the world have developed or have the ability to develop the same or similar technology to manipulate such cells, they do not have the right to do so or commercialise the results in any way, even though the process or outcome may be different from that of BIOCYTE.
By all human ethical norms, does BIOCYTE merit such a right? Does anyone? Does the US government have the right to allow such a patent in the first place? No, it didn't. But then the US government makes a 'law' of anything to suit itself when it wants to have its own way, whether on its own behalf or at the behest of vested interests, mainly multinational corporations. It then imposes the same law as a conditionality for weaker countries that it trades or has other dealings with; such countries have no choice but to comply or to face trade sanctions or other penalties from the USA that in reality are blackmail and bullying. The principle is no different from that which forced certain reluctant developing countries to join in the so-called "war against terror". Otherwise they would have found themselves being victims of terror perpetuated by the world's biggest and most brutal military.
The effect of an intellectual property right which is the granting of a monopoly to a single party, is to exclude all others from participating in manufacture or commerce concerned with it for a given period of time. In a globalised world, it means that the patent can exploit the whole world as a single market. In a single stroke, hundreds of millions of businessmen or industrialists the world over, some big but mostly small, are deprived of investing and earning from that particular kind of enterprise.
Given that virtually anything and everything that has a large market or a potentially global market has already been patented, it is hardly surprising that such patent-holders are not just multi-billionaires, but trillionaires holding in their control huge chunks of the global economy. Consider that in two centuries from 1791 onwards, the US government issued 6 million patents. With the start of the 20th century, three million more applications for patents were already filed and pending approval.
In the year 1999 alone, over 73,000 applications seeking patents were filed with the World Intellectual Property Organisation (WIPO). Three-fourths of the applications came from the five leading industrialised countries, namely, USA with its tendency to appropriate as much as possible of the world's resources or business, leading with an overwhelming 39.8%; Germany 14.7%; Japan 9.8%; UK 6.4%; and France 4.9%. The developing countries and LDCs were only markets or sources.
In 1990 patent licences, $15 billion was garnered in global profit; in less than a decade (by 1998), it soared over six times to $100 billion. It is estimated that last year's revenues soared to half a trillion dollars.
Not everything merits or deserves a patent, least of all those materials or processes that are derived from nature, particularly genes. Even if a gene from one organism is transplanted into or combined with another, it is the kind of jugglery any scientific establishment with funding can execute. The ability to do this may give the company the leave to market their supposedly unique product or process, but the logic does NOT follow that others should be banned from developing similar products and processing and marketing them. The fact remains that the same or similar ideas and inventions can and do occur in different parts of the world within the same time-frame or decades or centuries apart.
Why should the majority of such discoverers be penalised just because one party got it patented first? In fact not every inventor in history patented his or her invention; often others who have copied the idea have dishonestly done so without giving credit or sharing the royalties. For the past several decades, the claim of "intellectual property rights" over genes and micro-organisms, whether from plant, animal, human, marine, bird or insect life, have been mostly acts of thievery or appropriation by brute force. Not surprisingly, the WTO laws, including everything to do with intellectual property rights and patents, all take off from the US versions. This, while claiming to be the champion of 'democracy' and sovereignty of nations. Clearly, democracy for the US only applies to its own country, and perhaps for other Western, industrialised countries - not for the rest of the world.
Intellectual Property Rights is defined as any form of ownership conferring the right to gain from something created by human ingenuity, such as patents, copyrights or trademarks; a patent being an exclusive right conferred by a government for a specified period to inventors of any new and useful machine, process or substance to manufacture or sell their products. The multinationals ensure monopoly markets through Trade Related Intellectual Property Rights (or TRIPs for short) under WTO, designed especially for them.
Today, around the world, people at all levels, rich or poor and the under-privileged most of all, have to put up with insuperable hurdles simply trying to make a livelihood, whether they are peasants or simple rural artisans, or students or small entrepreneurs using computers, or patients in homes and hospitals, have to put up with the consequences of patents, even though they may have never heard of WTO nor understand its rules. After all, none of the developing countries of the South thought up or wanted any such intellectual property rights and patents regime. Because ownership over any life-form, human, plant or animal, in whole or part, is unthinkable in southern culture and goes against basic, natural rights of all those that survive through inter-dependence.
It was something that began to be cooked up from the time certain corporations, especially those dealing with seeds and genetic engineering, invented the non-reproducing seed and tricked farmers worldwide to accept it by false claiming that it would indefinitely give manifold the normal output. By the time the hoodwink was seen through, several decades had already passed by which time the global mass-sowing of non-reproducing seed wiped out the acreages of crops from natural, reproducing seed and most farmers, especially large-scale ones, had no choice but to become dependant on the monopolistic seed giants.
Similarly, the pharmaceutical giants have patented medicines that are widely needed all over the world but which have been stolen from indigenous knowledge of herbal medicines in the first place. One of the latest and among the most notorious examples is that of the Hoodia, a succulent cactus that grows throughout the semi-arid areas of Southern Africa. The edible Hoodia stem turned out to be an appetite suppressant with the remarkable ability to stave off hunger and thirst for long periods.
The local hunter-gatherer bush people who trace their heritage back to 27,000 years based on ancient rock paintings, have historically used it as a necessity on long journeys or animal hunts over hundreds of miles with little food and water available on the way. The South African government, through its Council for Scientific and Industrial Research passed on the Hoodia to Phytopharm, a British Company, which 'developed' it into a cure for obesity for which a market abounds in the West, especially in fatness-beleaguered America. Its great virtue is that it has none of the side-effects that other non-plant obesity drugs have. Phytopharm then sold the exclusive global licence for commercialisation, to the US pharmaceutical giant, Pfizer.
When the San bushmen found out what was done behind their backs, they were outraged. They did not object to anybody using their knowledge, but since it was being exploited for corporate profit, an agreement should have been made with the bushmen first and collective benefits given to them. But Phytopharm's CEO had the gall to claim that his objective had been to help tribal people profit from their ancestral plant knowledge. In the same breath he stated he was told the indigenous people who held this knowledge had all disappeared. The in-charge of the Hoodia project under the Council for Scientific and Industrial Research had claimed there were only a few hundred bushmen left who were difficult to find. The fact was that there were a hundred thousand of them.
The San bushmen who are extremely poor and little protected and could certainly do with some money to save their culture, then decided to defend their rights through the only means big businesses understand. A legal group and other communities came to their defence. It became clear that both Pytopharma and CSIR had violated the rules of the Biodiversity Convention, which requires the prior informed consent of all stakeholders, including the original discoverers and users. They had taken advantage of the dubious TRIPS Agreement which allows the patenting of unproven "inventions" based on stolen traditional knowledge and genetic resources.
The TRIPS Agreement was enforced with the WTO in 1995 as the first and most sweeping agreement that allowed an international body to legally regulate plant variety protection, industrial property, including patents on life forms (Article 27.3b) and copyrights under the broad cover of "Intellectual Property Rights."
This enabled in league with pliant southern governments, gaining legal monopolies over the communal natural resources of billions of people all over the world, hitting the poor the most.
Previously, under WTO's predecessor, GATT, Intellectual Property Rights were included to deal only with manufactured counterfeit goods. But then the industrialised countries aggressively pushed for a much broader mandate that included patents on life forms and genetic resources. The south, led by Brazil and India, fought back hard, but when these two big countries surprisingly succumbed - whether through compromised on naïve representatives - they lost, and TRIPS became the latest all-encompassing weapon, following military might and global finance. Brazil and India, who were the longest to hold out against the TRIPS regime, succumbed in the end. The rest of the Third World, chained by official debt, were then easily made to submit.
TRIPS was in fact conceived, drafted and even negotiated with the help of the members of a Washington intellectual property lobby group. A French journal quoted a Monsanto representative, that "Industry has identified a major problem in international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments…"
Today more than 9,000 patents have a grip on the world's staple crops. Just four multinational corporations hold 44 per cent of all patents on staple. India has devised a plan to make all India's documented traditional knowledge as non-patentable prior art. Pakistan should do the same.
The world is covered with hundreds of thousands of different kinds of plants and their many varieties. In South Asia, there were once 30,000 varieties of rice, in China 10,000 varieties; there are still several thousand potato varieties in one corner of Latin America alone; and several thousand varieties of wheat in the world; and so on and so forth. All of them do not occur everywhere; but dozens or hundreds of the same varieties occur in the same areas. This is because each plant evolves to adapt itself to the local geography, climate, soil and fauna, and is adapted to withstand and survive the most severe local environmental conditions. Each plant is unique to that area. Just like people - even though people are far more flexible and adaptable.
Man selects the edible plants, and sows the ones he likes most in large quantities in one place. That's called farming. Man can choose the best seed, the place where he wants to plant them, and when to harvest them. But man remains dependent on nature for the seed's growth and maturity into full plants. What he cannot do is to create the seed itself. He is not a creator in that sense. Nor does he possess the knowledge to make it happen; all he can do is observe nature, and replicate the conditions in which the plants thrive best. He mimics. And therefore he is not an owner of that knowledge either. These plants are nature's gift to man so that he can survive. In fact, plants can survive without man, but man cannot survive without plant life. Without it, man would become extinct.
For thousands of years, these truths were obvious to people, and all knowledge and the freedom to plant any seed was everyone's human right, and exclusive to none. Even today there are at least 1.4 billion farmers worldwide, both men and women, who rely on saved seed. It was the Western concept of private property that was to create so much division in the world that led to deprivation for the many. It is one thing to claim exclusive ownership over an item a person fashions with his own hands; it is quite another to own parts of nature on which mankind depends for food and raw materials.
Intellectual Property Rights (IPR) refers to exclusive ownership over some knowledge that the intellectual property owners have developed themselves. This is usually a technology, a process, that the owners could exclusively use themselves without anyone else being allowed to use it, or they could sell it to some other party and relinquish ownership over it. Or, if they want to keep the cake and eat it too, they can use it themselves, retain exclusive ownership, and at the same time sell to others the right to use the technology for a limited time or under some strict conditions.
This is all very well with manufactured goods. In the field of life forms, such as crops, it is a different and unacceptable matter altogether. Nothing that is in existence in this world or in the universe, living or non-living, has been 'created' by man. It belongs to the commons - that is, the common lands of the world (now called state lands) and to all people.
Today's non-farming, so-called agricultural scientists pluck a gene from one plant or animal or insect or fish or even human, and put it into some other species of plant where it does not naturally belong, and claim they have 'created' something. But have they? They may have done some jugglery, some re-combining of different materials, which is all that man can do, but they certainly have not created the gene or any molecule, or any substance or material in the world, for that matter.
Farming is the livelihood of 75 per cent of the world's population who live in rural areas. By allowing non-farming corporations to claim ownership over a seed or the new plant variety from it simply by inserting a new gene into it as well as ownership over all seeds and plants that are an offshoot of it even if they land accidentally hundreds of miles away and used by others unknowingly, is literally to create a dictatorship controlling the means of food, materials and livelihood of the world. The artificially inserted gene may be utterly useless with no function intended - just placed there to make the plant 'different'.
There is neither logic nor ethics in it, but simply an imposition on the weak thrust by the powerful who can influence governments and law-makers. If one were to go through all the millions of laws made in the world, a common feature would emerge: that most laws were made arbitrarily by the powerful and unilaterally applied by force or threat of force, and that most laws are unjust. Unfortunately, endless oppression and deceptive mental conditioning of the masses has made most people equate man-made law with the principles of right and wrong. But they are not the same. As we know from ruthless dictators and elitist governments, laws do not necessarily have to do with what's good for the people; they are mostly rules by which rulers control people.
It is similarly the case with Intellectual Property Rights (IPR). It has nothing to do with genuine ownership. Just as a land-grabber may appropriate community or state land and somehow claim he is the private owner through the application of the more dubious parts of the law, IPR is forced takeover of what has always belonged to the world free. This is why India is formulating a plan making all India's documented traditional knowledge as non-patentable prior art, and getting global patent offices in the US and Japan to accept it. This means seed and agro-based corporations would not be able to claim ownership of any seed or part of it such as the genes, and then takeover both seed and traditional knowledge through the back door. Pakistan should do the same.
The other danger is that, as in Percy Schmeiser's case (see Box), no one has control over the wind when it blows genetically-modified seed far away onto other farmers' field who don't even want it. These contaminate other plants in that they may pass on their unwanted characteristics or displace native species altogether, so that it is just a matter of time before millions of square miles of the world are covered with it while millions of native species are destroyed. That's exactly what happened with the so-called High Yield Variety (HYV) seeds of the so-called Green Revolution that brought Pakistan and most other developing countries to grief. The end result would be obvious - loss of livelihood and starvation to death of three-fourths of the world who depend on traditional farming and native species who are unable to and would not want to pay for faulty, self-destructive, chemical-using genetically modified seeds.
Intellectual Property Rights may have its place in the artistic world of the writer, musician, painter, thinker and academician, and inventor, but not in the world of agriculture or any part of nature that man had no hand in creating. Granting such IPR is merely the legitimisation of theft. As a 17th century English verse put it:
"The law hangs the man and flogs the woman
Who steal the goose from off the common,
But leaves the greater villain loose,
Who steals the common from the goose."
The struggle goes on. It would be revealing to see which side the Pakistan government takes because our farmers can be the next victims.

( Concluded )

So-called "violation" of agricultural "Intellectual Property Rights"
"It's like planting fake evidence on an innocent person.
Then arresting him for possession of contraband goods."
Put yourself in Percy Schmeiser's shoes, and you will feel his outrage at the most extreme and unthinkable kind of dishonesty and injustice. He is a farmer, 75 years old this year. He owns a 600+ hectare farm in Western Canada and grows mainly canola. Having been a farmer for 58 years, he is well known in his area for preparing for farming the way our ancestors all over the world have been doing for centuries - until the last one. He doesn't believe in or buy commercial seed even if they are not the genetically-modified variety. He saves seed from his own crop each year for planting the following season. He also selects the very best to develop varieties with resistance to the usual diseases common in his area, and adapted to the local conditions.
Schmeiser had begun to use the new herbicide Round Up Ready or Glyphosate when it came to the market. One day he noticed that some of the canola plants growing along the edges of his fields were resistant to the new herbicide. This was not supposed to happen. He sprayed a test strip on his field and found more Round Up-resistant canola. He couldn't understand how such plants got there. He was to soon find out. The next year, he said, "I was shocked to receive a court order from Monsanto."
In telling his harrowing story quoted by Action Aid, the Institute of Agriculture and Trade Policy, Sereor, and Berne Declaration, in their joint report "TRIPS ON TRIAL", Schmeier narrates:
"Monsanto accused me of illegally obtaining their genetically modified, patented, Round Up Ready canola, and growing it without either their consent nor paying them. In court, Monsanto withdrew their charge that I had illegally obtained the seed for lack of sufficient proof, but they maintained their accusation that I had grown their patented plant without their permission. They said that the percentage and quality of Round Up-resistant plants in my fields was so high that they could not have grown from cross pollinations with Round Up resistant plants from other areas. I argued that I had never obtained Monsanto's seed, because I always used my own seed. I had never even had any contact with Monsanto representatives other than buying some of their chemicals. In 1996, a neighbour of mine had planted Monsanto's genetically modified canola, and it was highly likely that some of the seeds had blown over onto my field, particularly as there had been a huge windstorm in 1996.
"Cross-pollination from my neighbours field might have played a role, but most of the genetically modified plants came directly from seed blown onto my land. Equally, the seeds could have blown off a truck going along the main road through my land.
"The judge ruled in favour of Monsanto's patent rights, on the following grounds: 'Even though I never gained any economic benefit from the patent, for I hadn't used Round Up and hadn't sold the seed, still I violated the patent by having the plants on my land. 'It didn't matter how the plants got onto the land - whether seeds were wind-borne, were washed in by flood, were carried in by animals or equipment, or by cross-pollination - they still violate Monsanto's patent. This means that even if my canola plant in my field gets cross-pollinated by Monsanto's genetically modified canola against my wishes, my plant still becomes Monsanto's property. 'The judge also ruled that all of the profits from my 1998 crop - 19,832 US dollars - go to Monsanto, even from the land that was not tested by Monsanto or me for the GM canola, just because of the possibility that the canola seed from those fields might contain some of Monsanto's seed in it.
"What this basically means is that the patent law is over and above any farmer's rights and plant breeder's rights. You can have all the protection from government on farmers' rights, but if Monsanto's patented genes are found on your land or in your plants you suddenly have no rights. It doesn't even matter that Monsanto destroyed my seed that I developed over 50 years, through the contamination with their GM seed. When it came to the issue of liability for the GM contamination in court, the judge said: that is a case for another court.
"For farmers, this means that companies like Monsanto are taking over complete control of the seed supply, a billion-dollar market. They are taking all the development away from farmers. The canola seed I developed grew well in my area, but if I had taken it 50 or 100 miles away the soil and climatic conditions could be a little bit different and my seed might not do so well. The best grains - wheat, barley, maize - were developed by farmers. Universities and research centres may have improved on the variety but the basic development was done by farmers. When these multinationals gain control of the seed supply they have one variety made to suit the whole of Western Canada - an area that is hundreds of thousands of square miles wide. A farmer's right to use his seed the following year is a God-given right, and if he loses that freedom of choice he'll become a serf of the land. Who is liable now for the contamination of our farm lands with genetically-modified canola?"
Percy Schmeiser was dragged into court for doing nothing and knowing nothing. The judge's knowledge of environmental issues was probably limited because Schmeiser lost the case. However, he must have learned something during the course of the long trial because Monsanto was awarded damages of only one token dollar.
Schmeiser later brought a counter-suit accusing Monsanto of releasing a substance into the environment that they knew they had no control over and have no intention of controlling. He is also trying to make Monsanto liable for the destruction of his own developed seed. Today, he is doing advocacy work all over the world for farmers' rights. In the meantime Monsanto has started litigation against hundreds of farmer-victims like Schmeiser. They and other farmers' groups have gone to court against Monsanto. They are still pending.