Biotech patents: protection for whom?

Published March 1, 1999

WHILE THE PACE of developments in the biological sciences and the growth of the biotechnology sector have given rise to a great deal of concern about their ethical implications, many people feel powerless in the face of such a complex area of change in our society. How do we begin to address the issues raised by these new developments?

One way is to deal with a small piece at a time. This was the approach taken by the Canadian Environmental Law Association at a consultation it held at the end of January. The meeting drew together government representatives, ethicists, community activists, and representatives of religious communities. What follows is my own reaction to that encounter and the issues raised.

The consultation focused on the issue of intellectual property as reflected in patent law in Canada. This is a good place to start for a number of reasons, not least, because it raises two of the central questions that need to be addressed. First, what do these new developments say about our relationship to the wider world of which we are a part? Secondly, who will benefit from the new developments – and who may end up paying the cost?

In 1985, researchers from Harvard University sought patent protection in Canada for a mouse that had been genetically modified in a way that made it more susceptible to tumours. This change made the mouse useful to scientists investigating causes of cancer. The Canadian Intellectual Property Office finally released its decision in 1993, saying that while the process of genetic manipulation used to alter the mouse could be patented, the mouse, as such, could not be. This decision is currently under appeal, but raises the question as to whether whole organisms such as mice are really the sort of thing we want to see patented. What does it say about our understanding of, and relationship to, non-human animals if we can take a patent out on them? Does this imply that animals are mere, “soulless, unfeeling creatures that may be treated like machine parts,” as one commentator has put it?

The problem becomes even more acute when patents are taken out on human genetic material as happened in the case of John Moore, a cancer patient whose spleen was removed at a hospital in California. When researchers found they were able to culture cells from his spleen to make compounds (lymphokines) with great commercial value, Moore sought to share in the profits. The courts ultimately rejected his case. This raises our second question: who benefits?

In theory, patent law promotes scientific inquiry and accelerates the process of discovery from which we all benefit. In fact, there is no hard evidence that it really does this. But there is evidence it sometimes does the opposite. In addition, patents are being taken out on genetic materials collected from many parts of the world on the basis of subsequent modification or cultivation by Western corporations. This has given rise to charges of “biopiracy.” Certainly, it is not clear how the developing world might benefit from Western ownership of rights over their biological resources. As another commentator has remarked, this represents a shift in the nature of colonization from, “the vacancy of target lands,” to “the vacancy of target life forms and species manipulated by the new biotechnologies.”

Here we come, I think, to a central problem. It is well to remember that when the English philosopher John Locke (1632-1704) was laying the foundations for the modern understanding of property and property rights, at least a part of his context was the desire to justify the colonization of the Americas by showing that the land did not belong to anybody because it had not been “improved” through human labour. Perhaps not that much has changed after all?

Moreover, our room to manoeuvre in this area is not unlimited. Canada has signed a number of international agreements that limit our ability to refuse patent protection on public policy grounds. It is not even clear yet what limits might be helpful. What is clear is that the patent process needs to be assessed not simply in terms of commercial interest, but in terms of ethical implication.

Rev. Eric Beresford is consultant for ethics and interfaith relations for the General Synod.


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