1. Patents on life

In order to patent an object, the inventor has to prove that it has never been made before, involves a ‘non-obvious’ inventive step, and that it serves some useful purpose. Until recently, these criteria excluded living organisms, which were always regarded as discoveries of nature, and therefore unpatentable.

In 1980, however, this was all set to change. In the landmark case of Diamond v Chakrabarty, the US Supreme Court ruled that a living organism, a bacterium that could digest oil, could be patented. Chief Justice Warren Burger declared that the "relevant distinction is not between animate and inanimate things but whether living products could be seen as human-made inventions". (1)

This extraordinary decision by the US Supreme Court heralded a new era in which living organisms could be patented, and paved the way for the enclosure of the biological commons. Once a shared heritage, the gene pool of plants, animals and humans was now a commodity waiting to be bought and sold.

The significance of this decision was not lost on corporate investors. A few months later, on October 14th, a recently formed biotech company called Genentech offered a million shares of stock to the market at $35 per share. After just 20 minutes, the shares were being sold at $89. By the end of the day, the company had raised $36 million. Genentech had not yet introduced a single product onto the market. In the words of Jeremy Rifkin, president of the Foundation on Economic Trends, genes had been identified as the "raw resource for future economic activity". For those with the necessary technology and capital, the race to patent life had begun. (2)

A patent, which usually lasts for 17-20 years, gives the patent holder exclusive rights to exploit an invention for commerical gain. What this means in the case of genetically engineered crops, for example, is that farmers have to pay a license fee and royalties for the use of GE seed and all seed produced from the plants for duration of the patent.

Can a living organism properly be regarded as a human invention? Genetic engineers do not create life; they manipulate genes. As a group of British scientists pointed out, "if this principle had been applied in chemistry, the elements would have been patented". (3)
 

References:

1. Diamond S.A. (16 June 1980) Commissioner of Plants and Trademarks, petitioner, v. Ananda M. Chakrabarty et al., 65 L ed. 2d 144, p.152
2. Rifkin J. (1998) The Biotech Century, Tarcher and Putnam, p.43
3. Dalton H. et al (1997) Patent threat to research, Nature

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