Noticing patent absurdities

March 2011

The huge resources and expertise being diverted into the science of DNA have been pushed relentlessly forward by a commercial carrot dangled by a patent-shaped hand.

Up until now, what's been keeping the biotech seed and gene-testing companies in business has been the acquiescence of patenting offices which exist to promote and protect commercial interests.

Common sense might disallow the idea that a component of life which is self-replicating infinitely evolving, dispersive, and is, in some cases, a result of completely natural evolution can be patented.

Industry and patent offices seem to have easily convinced themselves that common sense can be by-passed when there's profit in the offing.

Predictably, the realities created by patents on DNA are beginning to become too apparent to ignore.

Starting with the concentration of the global seed market in the hands of a few multinational patent-holders, we have rapidly witnessed the inevitable consequences: seed price hyper-inflation, erosion of seed diversity (especially of traditional seed availability) and along with this consumer choice, diversion of land-use and food-crops into production of industrial chemicals, and a stifling of independent science and innovation.

The biggest problem is that the DNA in seed is not only fundamental to seed and crop quality. It also lies behind the resulting food and feed quality, the chemicals which can be extracted from the crop, the quality of livestock fed on the feed, and the quality of food or other materials derived from the livestock. By patenting the DNA in the seed, control of the entire farming system and food chain becomes possible.

And it gets worse.

In 2010, at least 250 patent applications for GM plants were filed with the European Patent Office (EPO). A further 100 patent applications were filed for conventional, plant breeding. In other words, the principle of patenting life put in place to suit the biotech industry's need for a high price tag on its expensively-developed GM seed, has insidiously been extended to cover any life-form the seed industry wants to own.

The principle of patenting DNA has even extended to natural human genes, on both sides of the Atlantic.

However, the absurdity of patents on DNA is beginning to be noticed in regulatory circles.

In Europe, the EPO is in the process of setting a precedent that conventional breeding methods themselves can't be patented. However, one month after the announcement of this decision, it wrote a letter to Seminis seed company (a subsidiary of Monsanto) indicating no objections to its patent application for a conventionally bred tomato with reduced core. It seems the EPO can't get its head round what should or shouldn't be patentable. 'No Patents On Seeds' has spelled out to the Members of the European Parliament and European Commission what is wrong: 
“Clear and effective prohibitions from patentability are largely missing from the present legal framework. Existing prohibitions concerning patents on plants and animals can be easily circumvented, as shown by many decisions of the EPO. For example, patents on gene sequences and breeding processes are easily extended to plant and animal varieties.”
In America, where gene patents have been issued for decades, the decisions of the patent office on patentability of natural genes have, for the first time, been examined in court.

The case was brought by academic representatives, doctors and patients to question the patents granted on human genes thought to be linked to cancer and used as to predict risk of the disease.

Their complaint concerned the restriction of scientific and clinical research, and the denial of patients' access to second opinions and medical care by the patent holder.

With a price-tag of $3,000 per test, and revenues of over £300 million by one gene testing company alone, the court's opinion was as described by one genetics professor as “a bit of a landmark, kind of a line in the sand”. What the judge said was:
“The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is 'isolated' from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth ...

“We acknowledge that this conclusion is contrary to the long-standing practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA ...

“The information encoded in DNA is not information about its own molecular structure incidental to its biological function, as is the case with adrenaline or other chemicals found in the body ...

“this informational quality (of DNA) is unique among the chemical compounds found in our bodies, and it would be erroneous to view DNA as 'no different' than other chemicals previously the subject of patents ...

“DNA, in particular the ordering of its nucleotides, therefore serves as the physical embodiment of the laws of nature – those that define the construction of the human body ...

“the preservation of this defining characteristic of DNA in its native and isolated forms mandates the conclusion that the challenged composition claims are to unpatentable products of nature.”
This pronouncement will, no doubt, have repercussions around the world: the EPO will have to rethink it's 2008 decision to grant patents on human genes, and the Australian government will shortly be receiving a call from one of it's MPs to amend its own Patent Act in line with the US.


Perhaps someone will run some other profound questions through the US courts sometime soon. For example: how can an inherently self-varying and mobile material be defined or controlled sufficiently to apply a patent law to it? Or, will man-made DNA constructs still be patentable when they mutate or move into non-target organisms?

The next absurdity to be tackled is how a change small enough to be concealed from the person who will absorb it into their body, is nevertheless large enough to permit control of our entire present and future food quality, food price and, ultimately, food availability by purely commercial interests?

What you can do

'No patents On Seeds' has prepared an open letter to the European Parliament and the European Commission because “Legal clarification through a change in European patent laws is urgently needed.” Individuals and organisations are invited to sign the letter. 

Open letter To Members of the European Parliament and European Commission

  • European Patent Office to grant Monsanto company patent on tomatoes – Seed monopolists increasingly gaining market control, No Patents On Seeds, 9.03.11
  • Death of Gene Patents? Institute of Science in Society, 11.11.10

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