Why life forms should not be patented

The patenting of life forms, some of which has been made mandatory by the WTO, is unethical and also against the economic and social interests of developing countries. Speakers and participants at a panel discussion on the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) during the recent TWN seminar have suggested that the treaty should be revised and the patenting of life prohibited.

Martin Khor

THE patenting of life forms has become the subject of a growing worldwide campaign by citizen groups, environmentalists, scientists, farmers’ organisations and also religious leaders. They believe that animals, plants, humans, microorganisms and their parts such as genes and cells, should not be patentable as these life forms are creations of God and Nature. 

They also argue that life forms, even if they are genetically modified, are not inventions and thus do not meet the criteria of patentability.

A debate has also been raging in the WTO, which is reviewing Article 27.3(b) of the TRIPS treaty which deals with patenting of life forms.  It allows countries not to patent plants and animals but makes the patenting of microorganisms and microbiological processes compulsory, thus opening the road to patenting of life.           

These issues were addressed by speakers and some participants at a panel discussion on the review of the TRIPS Agreement during the Third World Network seminar on ‘Current Developments in the WTO: Perspective of Developing Countries.’

Opening the discussion at the TWN seminar, the chairperson, Chakravarthi Raghavan, said that a basic rethinking is now going on in the public arena on the nature of intellectual property rights (IPRs) and TRIPS, and on the need to balance the rights of IPRs holders and those of users and consumers.

Raghavan said policy-makers and negotiators from the South should examine what had been promised in the TRIPS negotiations on technology transfer and other positive aspects and compare these with the actual results. They should also focus on the aspects of TRIPS that had generated negative effects and that thus need to be reversed.

Nelson Ndirangu, a senior Kenyan diplomat based in Geneva, said developing countries had general concerns that the TRIPS Agreement requires strong regimes to protect intellectual property. The advantage would go to those holding patents. Although the developed countries had said that strong IPRs rules would cause technology transfer to take place, five years later this has not happened, and thus the claims of benefits were similar to fraud.

In relation to patenting of life forms, Kenya and the Africa Group believe that this is unethical and should not be allowed. This patenting also has serious implications for food security.

African countries are not satisfied with Article 27.3(b) of TRIPS. The requirement for protecting microorganisms, non-biological and microbiological processes, and plant varieties is unethical in allowing patents over life forms, is unfair in terms of biopiracy, and harms food security for local communities and harms biodiversity.

Ndirangu added that when a product is patented, it disallows or discourages research. Big companies that patent would benefit and produce what the market wants. ‘Those of us living on subsistence cannot afford patented products from the North. Also, in relation to products containing genetically modified organisms, we are not sure if they are safe for health or the environment.’

South-North flow

Cecilia Oh, legal advisor to the Third World Network, said that the TRIPS Agreement has contributed to the prevention of access to technology for developing countries.

In the case of patents on biological materials, there is a ‘double irony’ in that patents are being granted over biological materials and the traditional knowledge of the use of such materials. This prevents access by developing countries to such biological resources and knowledge, which originated largely in the developing countries themselves. In this context, the TRIPS Agreement has facilitated the flow of resources and technology from the South to the North.

As UNCTAD’s Trade and Development Report 1999 pointed out, IPRs protection  has generated an outward flow of  profits  from  developing to developed countries, in  terms  of payments for technology and licensing fees and royalties.

Oh said the patent system was not an appropriate reward system for knowledge relating to biological materials. ‘The patent system was designed to protect mechanical inventions, and makes the distinction between mere discoveries and inventions. It is clear that biological materials are naturally occurring and can only be discoveries, and not inventions.

‘Patents confer monopolies over patented subject matter. In the cases of seeds and plant varieties, patents on such biological materials will have serious implications for agriculture and food security in the developing countries. The monopoly over biological resources and knowledge essential for agriculture, medicinal and other uses may be misappropriated and vest in individuals and corporations.’

Oh added that from a scientific perspective, the distinctions made in Article 27.3(b) (for example, between plants and animals (which may be excluded from patentability) on the one hand, and microorganisms (which have to be covered by patentability) on the other) are artificial and were drafted with the aim of allowing and requiring microorganisms and microbiological processes to be patentable.

Quoting from reports made by scientists, Oh said: ‘Scientifically, no such distinctions can be drawn, and therefore, all living organisms and living processes cannot be patentable.’

Four categories

She said that there are four categories of patents on life forms and processes which should be prohibited or banned. These are:

*     patents based on bio-resources and knowledge of their use pirated from countries and indigenous communities, which do not satisfy the novelty or invention criteria; 

*     patents on discoveries, e.g., microorganisms, cell lines, genomes, genes (including human cell lines and human genomes and sequences), which are all naturally occurring;

*     patents on transgenic techniques and constructs, and transgenic plants, animals and microorganisms (better known as genetically modified organisms); and

* patents on nuclear transplant cloning (for example, the techniques that produced Dolly the sheep).

Oh said:  ‘A system for rewards should be developed, but distorting the patent system only serves to attract controversy and rejection of the whole system.’

She added that at the WTO, the Africa Group of countries has already submitted a comprehensive proposal with the main point that ‘the review process should clarify that plants and animals as well as microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable.’

The Africa Group had also proposed that the protection of plant varieties should allow for protection of the innovations of indigenous and local farming communities in developing countries.

At discussion time, Leo Palma of the Philippines Mission in Geneva said he subscribed to the view that there should be no patents on life forms. He asked how this principle should be brought forward.

A delegate from Trinidad and Tobago said it was important to work out the elements of an appropriate system of protection for plant varieties.

A delegate from the India Mission said it was useful to examine the patent application forms and procedures in developed countries, such as the United States. He proposed that in patent application forms a column be added to include the source of origin of biological materials. Before patents are granted, the source of origin, as well as  evidence whether the knowledge had already been in use, should be looked at. This would help prevent patents being granted for products or knowledge that have already been in use in other parts of the world.