High-tech Piracy
(Page 2 of 5)
March/April 1996
By Special to Utne Reader--Andrew Kimbrell
The Patenting of Life
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Modern-day biopiracy is not just the product of new science and corporate greed, but also of new law. The economic trigger for bioprospecting was provided by a little-known 1980 U.S. Supreme Court decision, Diamond v. Chakrabarty. Its impact makes this unheralded court decision one of the most important judicial decisions of the 20th century. The case began in 1971 when Indian microbiologist Ananda Mohan Chakrabarty, an employee of General Electric, developed bacteria that could digest oil. That same year, GE applied to the U.S. Patent and Trademark Office (PTO) for a patent on Chakrabarty's genetically engineered oil-eating bacteria. After several years of review, the PTO rejected the application under the traditional legal doctrine that life forms ("products of nature") are not patentable.
The case was eventually appealed to the U.S. Supreme Court, which handed down its surprise opinion in June 1980. By a five-to-four margin the court ruled that the patent was to be granted. The highest court in the United States had decided that life was patentable, stating that the "relevant distinction [in patentability] is not between living and inanimate things, but whether living products could be seen as `human-made inventions.'"
Allowing a patent on a life form proved to be a slippery slope: In 1985 the PTO, on the basis of Chakrabarty, ruled that genetically engineered or altered plants are patentable. In 1987 the PTO extended patenting to all altered or engineered animals. Within a few years, microbes, plants, animals, human cells, cell lines, and genes were being patented.
The impact on the globalization of biotechnology has been profound. A corporation or government entity can expropriate a natural substance found in a Third World location, isolate valuable genetic material, patent it as the company's property, and have a monopoly on commercial uses of the genetic product for approximately two decades. By a margin of one vote, the U.S. Supreme Court handed over the genetic commons of the earth to private ownership.
Biotechnology and new patent law have allowed companies to capitalize on even the smallest of life forms. The Merck pharmaceutical company has patented microbial samples from nine countries. These include soil bacteria from a heather forest on Mount Kilimanjaro, a Mexican soil fungus useful in the manufacturing of male hormones, a fungus found in Namibian soil of potential use in treating manic depression, a soil bacteria in India that serves as an antifungal agent, and a Venezuelan soil bacteria patented for use in the production of antibiotics.
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