In a previous existence, I was a campaigner against GMOs and was heavily involved in the No Patents on Life movement, which was, and still is, opposed to the patenting of lifeforms.
Patents are a monopoly right to exploit an invention for a certain period of time. What might seem common sense to most of us - that you can't invent something which occurs all by itself in nature - has been largely ignored up until now, by the lawyers and technocrats of the various patent offices around the world, whether it's the U.S. Patent & Trademark Office (PTO) in Virginia, the European Patent Office in Munich (EPO), the Japan Patent Office in Tokyo or the Controller General of Patents, Designs & Trade Marks in Mumbai.
So the decision last week of the US Supreme Court, that a firm called Myriad Genetics could not claim the patent ownership of two genes coding for breast cancer, called BRAC 1 and 2, was welcome news. The patents were originally awarded in 1998. Myriad had been charging fees for testing for these defective genes of around $3,000 per test per patient and they had used their monopoly position to block further independent medical research by making licences difficult and expensive to obtain. The way the patent system works is that the award stands unless it is challenged successfully by an opponent. In this case it was a coalition of NGOs which brought the case.
The lead judge said that a naturally occurring DNA segment is a product of nature and not patentable merely because it has been isolated from its origins. This unanimous decision of the highest court of the United States should means that the multibillion-dollar biotechnology industry is no longer able to have exclusive control over genetic information found inside the human body. However in the EU, the Biotech Patent Directive (Directive 98/44/EC of 6 July 1998) actually says that in certain circumstances biological material can be the subject of an invention even if it previously occurred in nature (Article 2.2), so there is now a conflict between these two patent regimes.
What seems to have gone un-remarked so far is that although this was a case about human genetics patents, the same principles should apply to plants and animals-domains where the genetic engineering industry has over recent years spread its patent tentacles far and wide. In one case the US Government claimed patent ownership of the natural fungicidal properties of the Indian Neem tree – a patent which was finally overturned after years of legal opposition by Green MEPs and other activists. Bio-piracy, whereby genetic traits of plants, animals and humans are identified and patented, often based on the undocumented knowledge of indigenous peoples, should become harder as a result of the US ruling.
I once gave a presentation of a mythical case where a company had patented a dog’s bark. It was meant to be a humorous piece to close a long conference but it produced strange echoes of what the future could be. Maybe the US Supreme Court would like to rule on that!