The brave new world of “owning life” began 32 years ago when the U.S. Supreme Court first approved the patenting of a genetically engineered bacteria that can help decompose oil. By a 5-4 decision, it was the first instance of U.S. law recognizing ownership in a "manufactured" lifeform. On Wednesday, I had the opportunity to participate on a panel with the microbiologist who brought that 1980 case, Ananda Chakrabarty, who was then an employee of General Electric.
The panel was part of a series of live radio programs hosted by Action Speaks! in Providence, Rhode Island, an usually intelligent, spirited show hosted by the genial polymath Marc Levitt. The theme for this fall’s series is “Private Rights and Public Fights,” which is devoted to looking at “moments when the rights of the individual have clashed with the needs or beliefs of the public—and where the line between private and public has been defined or blurred.”
Anyone who noses around the legal literature soon realizes that the case of Diamond v. Chakrabarty is a real landmark case because it opened the door for the patenting of lifeforms. Over the past thirty years, more than 3,000 gene patents have been granted. Nearly 20 percent of the human genome is now privately owned. The U.S. Patent and Trademark Office has issued nearly 50,000 patents involving human genetic material. Patents have been granted for microorganisms, genetically modified plants and animals, stem cells, tissue and many other living things.
Chakrabarty, now is a 74-year-old professor at the University of Illinois College of Medicine at Chicago, had few reflections to offer on the seismic impact of the case. He was proud of his role in legal and scientific history, but he focused mostly on the scientific aspect of his work and of patent law in general. Too bad, because I think the extra-legal, extra-scientific ramifications of the Chakrabarty case have been significant.
Once lifeforms are patented, they are legally regarded as objects of property. This amounts to a legal fiction because bacteria, genes, plants and animals are not in fact inert, fungible individual units. They cannot truly be isolated from their surroundings even if scientists can sometimes isolate key elements and make synthetic substitutes. Nature is alive, alive! It's not property in any normal sense. Lifeforms interact in complex, dynamic ways with other lifeforms and with the environment. They develop, the interact, they lead complex lives, they die.
No matter: the law regards patented lifeforms as objects that can be used instrumentally and as any "owner" wishes. Owners can buy and sell them; they can build large, global markets around them; they can modify and destroy them; they can let them loose in nature, with uncertain consequences.
What this means is that the market order can attempt to dictate how lifeforms may interact and exist. It wants to maximize return on investment, of course, and has only secondary regard for the ecological identities of lifeforms and their larger, more complex, long-term roles in nature.
If there is some marketable value in transgenic engineering that produces a more attractive tomato or a more useful lab rodent (Harvard is the famous owner of the "oncomouse"), the law gives full backing to such ideas. Indeed, if markets want to create new species that have a marketable, profitable purpose, patent law facilitates this process, especially in the general absence of rigorous premarket testing.
There are legal limits to what is eligible for patents. You can’t patent laws of nature (E=MC2), physical phenomena and abstract ideas. But if you tweak a law of nature and give it a physical embodiment, well….then you just might be able to claim that your “invention” is novel, non-obvious and useful. That's what has happened for many mathematical equations embedded in software. They can be patented -- and you can be excluded from using them. More on this in a book by Ben Klemens, Math You Can't Use.
The ability to own lifeforms didn’t happen overnight, notwithstanding the Chakrabarty decision. It was a cultural transformation that began in the late 1970s and has continued ever since. This was an inflection point is the transition to a hyper-marketized society.
1980s was the year that both Ronald Reagan and Margaret Thatcher were elected, giving corporations major political influence and ushering in the fierce, fundamentalist political philosophy of neoliberalism. That was also the time when industry lobbies succeeded in making quantitative cost-benefit analysis the standard tool for health and safety regulation, supplanting the ethical and social policy judgments that previously prevailed.
This was also the time that Congress enacted the Bayh-Dole Act, which authorized universities to claim patents in the knowledge generated by federal research grants. This opened the door for corporate/academic partnerships that sought to commercialize academic science. The ability to patent federally funded research and take it out of the scientific commons has led to greater monopoly control over knowledge, more ethical conflicts of interest among researchers torn between academic norms and corporate sponsors; greater secrecy because of corporate partnership agreements; and shifts in research priorities from basic research to more applied, commercial research.
Given this political and cultural climate, it was only natural that a fairly minor precedent, Chakrabarty, would be aggressively used to expand the scope of patents. And indeed, that’s what has happened.
There are many powerful objections to the trend of patenting lifeforms. The first is the religious and ethical objections to owning life. It diminishes humanity by changing our relationship to nature. When nature can be patented, it means that we can treat it as a commodity, an object, a replaceable cog. The legal system implies that we can tinker with the elements of nature as if it were a machine, not a living organism that is interdependent on a web of other life.
Patenting of life also implies that we can treat each other and our body parts as commodities. There was a famous case in the 1980s in which research physicians in California removed tissue from the diseased spleen of businessman John Moore without his consent or knowledge. Then proceeded to develop a commercial medical therapy using Moore’s tissue. So who “owns” Moore’s spleen – Moore himself or his doctors? The California Supreme Court declared that Moore had no defensible property interest in his spleen.
In reading about the patenting of lifeform, I am struck again and again by the perils of property speak. The proper question is not “Who owns….?” but “How shall we steward….?” Property discourse helps persuade us that we actually can have outright dominion over lifeforms; that they can be treated as inert objects; and that markets for those lifeforms is acceptable.
Property discourse shuts down other imaginative possibilities that could be more humane and ecologically minded. Why don’t we have “zoning” for what elements of the humane genome and genetic knowledge must be open and public, and which can be privately owned? Why not create public trusts to manage certain types of tissue so that private investors do not enjoy privileged control over them?
The case of the breast cancer susceptibility genes, BRCA1 and BRCA2, are the cautionary lessons for what happens when genetics “go private.” In this case, Myriad Genetics of Utah developed a diagnostic test for a gene mutation that was statistically helpful in identifying susceptibility to breast cancer. A great development! But because the company claimed a patent on the genes and its diagnostic test -- and accused others who tried to identify the BRCA1 and BRCA2 genes of patent violations -- the patents served to inhibit innovation and prop up tge company's monopoly prices.
When we consider that a great many patents build upon the knowledge financed by we the taxpayers – as administered by the U.S. National Institutes of Health, which spends $30 billion a year – such acts become especially galling. Many medical patents are free-riding on “our” basic research. Just as the National Weather Service treats its weather data as open source information available to all, so the NIH and other federal funders of research ought to insist upon non-exclusive licenses unless there is some compelling reason to do otherwise.
Defenders of patents like to point to the lifesaving drugs and treatments that they develop. But the problem is that the patent system tends to encourage all sorts of innovation for marketable, incremental benefits – e.g., baldness, skin care, etc. – at the expense of more important therapeutic needs – e.g., tropical diseases, malaria, etc. – that may have no consumer demand. Poor people in Africa do not have enough money to make it worthwhile for drug companies to research such diseases. Patents cater to consumer demand, not to therapeutic need.
As it happens, there are other ways that we could incentivize drug innovation for more serious therapeutic needs, such as “prize systems” that would give drug developers large rewards and then make the drug available under a compulsory license. Drug prices would decline, government expenditures for drugs would decline, and pressing therapeutic needs worldwide could be met.
The patenting of lifeforms also opened the door for the plunder of biodiversity in the most economically marginalized countries of the world. Large pharmaceutical and ag-biotech companies have prowled the genetic heritage of Madagascar, India and other nations of the global South, seeking to identify promising feedstock for new patented products. This is commonly known as biopiracy.
Going beyond the simple commodification of genes, there are now efforts to “financialize” natural resources by establishing global markets based on lifeforms treated as commodities. When patents in nature can be turned into financial instruments (in the fashion of sub-prime mortgage derivatives) and treated by banks as collateral, the pressures to “marketize” nature and force it to turn a profit become much more acute. (More on this in a great essay by Antonio Tricarico in The Wealth of the Commons.)
We are still living in the world first heralded by the Chakrabarty decision. We are still grappling with how to arrest the systemic enclosures of lifeforms and nature. Enclosures of the genetic commons have proceeded so far that our former sensibilities about the ownership of life have been dulled, even anaesthetized. Despite the dubious ramifications of treating seeds, genes and animals as property, it remains stubbornly difficult to reverse this trend and protect the commons of life.
I will post the audio stream for this Action Speaks! show when it is available in 10 days or so.