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Who Owns Life?

By Mark Feldbauer

Most journalists, especially freelance journalists, are familiar with the wrinkles new technology can bring to the concept of copyright and intellectual ownership. There has been, for example, furious debate over who owns the electronic distribution rights to articles originally written for print.

But a huge new grey area has opened up with the spread of Internet technology. An awful lot of content - traditionally someone's intellectual property - is available for download, re-transmission, alteration and copying, 24 hours a day, free of charge. Imagine that it's your life story that's being accessed in cyberspace. Or that Southam, Inc. has copyrighted the word "media" and you can't use it without permission. To some observers, that's roughly what's going on in the expanding universe of biotechnology.

The debate over intellectual property rights in biotech is really not that complex, but the ethical and moral issues raised cast doubt on modern assumptions about the sanctity of life and our place in the cosmos. The "wow" factor of what can be done with the new technology is mind-boggling, more than a little scary, and attracts its fair share of media attention. But answering the larger question of what should be done with the shiny new tools biotechnology provides is like being asked to play God, King Solomon and small claims court judge all at once. It doesn't lend itself to short, punchy prose or a 30-second stand-up.

The media is telling the biotechnology story in fits and starts - test-tube skin, genetic cures for cancer or baldness, long-life tomatoes and so on. Stories about Dolly the cloned sheep don't always mention that the scientist who did it, Dr. Ian Wilmut, has filed a patent claim on all animals, including humans, cloned using his process. This amounts to staking a huge claim in the rush for "green gold", as Jeremy Rifkin refers to genes in his book The Biotech Century. Disney may have trademarked the name "Animal Kingdom" for its latest theme park, but life sciences corporations are going one better: they are patenting the entire animal and plant kingdoms as fast as they can.

There are serious consequences for the global economy and society if the gene pool can be patented, can become the intellectual property of multinational corporations. A small number of companies, research institutes and government laboratories could eventually hold patents on all the 100,000 or so genes that form the blueprint for the human race. Much as technology changed life for the journalist, allowing digitization of words and images and impressive database mining capabilities that gave rise to research-based reporting, the marriage of computers and genetics is paving the way for exploitation of an untapped resource.

Corporations are trying to exploit as much of that resource as possible. The precedent was established more than 25 years ago when a patent was first denied and then granted for a genetically-engineered microorganism that could "eat" ocean oil spills. The US Patents & Trademarks Office at first said that living creatures were not patentable, but when the "inventors" appealed to the Court of Customs and Patent Appeals, they won, the court deciding that the micro-organism was more of a unique chemical composition than a living thing.

The decision had huge implications which very few observers outside the industry saw at the time. However, chemical, pharmaceutical, agri-business and biotechnology companies intensified already vigorous R&D efforts, staking claims on the global gene pool through patent protection.

Since then, dozens of patents have been issued, especially in the United States, for genetically engineered animals. Virtually the only reason humans are excluded is the 13th Amendment prohibition against slavery: one cannot "own" another person in any manner.

In April 1998, the Federal Court disappointed Canadian biotechnology companies with a ruling that genetically manipulated animals cannot be patented in Canada. Harvard University had launched an appeal to the Federal Court after being denied a Canadian patent for its "onco-mouse" by the patent commissioner in 1996. This was the first time a Canadian court had ruled on the patentability of a higher life form. This mouse, the creation of Harvard biologist Philip Leder, is licensed to Du Pont and sold as a tool for studying cancer.

Canada will now lose ground in important research areas, in this case cancer prevention, because of this decision, according to biotech companies. Patent protection is essential, they say, to mitigate the financial risks in an industry where only one in 10,000 potential products makes it to market, and the cost of commercializing that product can reach $475 million. A patent at least lets investors know that if they have bet on the right horse, no one is going to steal the purse at the finish line. The intellectual property status of a company -especially a small start-up firm - is seen as a key to attracting the frequent infusions of money needed.

Canadian legislation on intellectual property is in line with current international practices, generally allowing patent protection for no less than 20 years. Last year's review of Bill C-91 focused on pharmaceuticals, but had implications for all the life sciences. That's because for many small to medium-sized biotechnology companies, their main asset is their intellectual property. Original passage of the bill in 1993 had a positive impact on research in Canada, with both the major brand name pharmaceutical companies and the makers of generic drugs increasing their research activity in this country.

There's no doubt corporations are scouring the globe for unique genetic traits, modifying and patenting them in some cases before knowing how they might be valuable. And because most of the world's biodiversity is found in the Southern Hemisphere, while the know-how to exploit it is found in the North, a battle is brewing over who controls the "green gold."

Take the example of Madagascar. It is home to the rosy periwinkle, a rare plant found in the tropical rain forest, and also to most of the world's vanilla supply. Researchers found that the rosy periwinkle had genes that could fight certain kinds of cancer. Eli Lilly developed a drug based on those genetic traits, and now earns hundreds of millions of dollars on sales of that drug, while Madagascar receives nothing.

Also, a method has been developed to grow vanilla (and many other foodstuffs) in a test tube. It's not hard to see what this kind of technology could do to the livelihood of peasants in Madagascar. Biotech supporters argue that this same technology can guarantee the world's food supply. Others say it has the potential to throw the global agricultural economy out of whack by making certain crops available in unlimited supply. Still others call this "biopiracy" -- using research into unusual genes from plant, animal and even human sources get control over indigenous genetic resources. By slightly modifying that gene they reinforce control, and then earn "obscene" profits, by patenting, goes the theory.

Arnold Slutsky, of the Samuel Lunenfeld Institute of Mount Sinai Hospital in Toronto, offers another view (again, in The Biotech Century): "If a journalist writes an article on a family, and then wins a Pulitzer Prize, does he give the family a percentage of his winnings?"

Many developing countries are unhappy about the way intellectual property rights work in favour of the industrialized countries. Giving global corporations monopoly ownership over food crops, as is happening with basmati rice, for example, is more likely to threaten sustainable food production and livelihood security than strengthen it.

There's no question knowledge-based industries like biotechnology will be crucial to the strength of national economies in the next century. But many observers see the need for more debate on the conversion of the global gene pool to intellectual property and allowing higher life forms to be patented changes the predominant view of life itself - it becomes just another commercial commodity.

Mark Feldbauer is a communications consultant in the biotechnology industry.

Published in Sources, Number 42, Summer 1998.

See also:
Patent Folly

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