On Tuesday, the New York Times reported that the Brazilian government has embarked on a project to transform the slime of a poisonous tree frog into a pharmaceutical compound for possible treatment of hypertension and strokes. The frog's habitat lies in a remote region of the western Amazon and the remedy is said to be the property of an indigenous tribe.
Yet the very term "property" raises many questions. How can it be morally justifiable to own and profit from life forms? And if it's ethical to do so, who should own the product of that research? The frog's historic custodians? The researchers or companies that extract the medicine? The entire world?
In general, recent progress in the life sciences has triggered stunning breakthroughs in curing disease, alleviating poverty, and enhancing global prosperity. Much of this progress derives from the ability of Western corporations to secure patent protection for their inventions; the prospect of years of exclusive profits from an invention underwrites their vast research and development outlays.
Yet several serious concerns surround the patenting of life forms. First, critics argue, patenting life may exploit indigenous peoples and life forms in general. Second, by enclosing the "genetic commons," the patent monopoly might unfairly confine to the private space that which properly belongs to the public. And third, the very process of owning life forms may deviate from how we ought to treat and conceive of them. This article responds to the first critique; future installments will address the other two.
Overall, it's important to remember that patenting life provides widespread benefits whose costs can be thoughtfully minimized; while granting an inventive monopoly over life itself raises important issues, it nonetheless merits an ethical defense.
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For 200 years, the United States excluded new life forms from the patent regime, which grants protection to "any new and useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof."
Then, in 1972, Ananda Chakrabarty, a General Electric biochemist, filed a patent for a bacterium he had invented to consume oil slicks. Although the United States Patent and Trademark Office ("PTO") rejected Chakrabarty's application, the case reached the Supreme Court which narrowly reversed the PTO.
After Chakrabarty, the PTO and various courts fleshed out rules concerning patenting other organisms. In 1987, the PTO announced that animals -- excluding humans -- were patentable subject matter. Shortly thereafter, it approved the first animal patent for a transgenic mouse with a genetically introduced susceptibility to cancer. (Canada's Supreme Court refused to patent the "oncomouse," contending that "[h]igher life forms are generally regarded as possessing qualities and characteristics that transcend the particular genetic material of which they are composed.")
Later, locating and reproducing certain genes were deemed sufficiently inventive activities to qualify for patent protection. Finally, in 2000, plants and their seeds became patentable on the ground that "the policy underlying the patent system fosters its application to all areas of technology-based commerce."
These life-related patents have propelled unprecedented change the world over. Patents on life have, among other things, reduced farmers' dependence on pesticides and portend vast improvements in doctors' abilities to treat cancer, AIDS, sickle-cell anemia, Down's syndrome, hepatitis, and Alzheimer's disease.
And yet, while life patents have stirred expectations that scientists will continue to foster prosperity and eradicate illness, many commentators have raised serious concerns about the process of patenting life and the legal regime that undergirds it.
One such criticism concerns the inherent unfairness involved in ownership over forms of life. How can society allow life to be patented, this argument goes, when the process by its very nature depends upon exploitation? According to some protesters, corporations that seek to patent life forms abuse the rights of indigenous peoples by taking a folk practice based around the medicinal use of a plant, converting it into a property right, and rendering it inaccessible to its practitioners without a use license.
Several developing countries have presented this argument formally. Madagascar contends that Eli Lilly unfairly developed two key cancer drugs from its rosy periwinkle. The government of Ecuador alleges that Abbott Laboratories created a painkiller derived from the secretion of its own local frog species. And the Brazilians have long harbored resentment at Squibb for creating captopril, a blood pressure drug, from native snake venom.
Others aver that patenting life poses risks for global health and security. Extending the American patent regime to the world at large, as the World Trade Organization's Trade-Related Aspects of Intellectual Property Rights (TRIPS) would do, threatens to make critical disease-fighting measures unavailable at reasonable cost to the world's suffering poor who need it most. Furthermore, patenting life harms the environment by disrupting natural ecosystems through transgenic experimentation. Simply put, some say, patents exploit those that are helpless to prevent their depredations.
Yet these grossly exaggerated contentions neglect the serious benefits that patenting life provides.
First, while using indigenous remedies or herbs to produce disease-fighting drugs may appear to exploit their source, the end result benefits all of humanity. Drugs derived from organisms in the tropics can be disseminated around the globe. While profit most certainly motivates corporate use of indigenous life forms, an altruistic streak of sharing knowledge and eradicating disease can be discerned in the process, and among the practitioners, of patenting life.
Second, corporations' adventures in tropical ecosystems furnish a substantial benefit. E. O. Wilson extols "bioprospecting," observing that "collecting samples of valuable species from rich ecosystems and cultivating them in bulk elsewhere in biologically less-favored areas is not only profitable but the most sustainable [form of resource development] of all." Indeed, the New York Times reported that pharmaceutical giant Merck paid Costa Rica's National Institute of Biodiversity $1 million for the right to collect plants in its search for drugs. Far from exploiting the environment, patenting life offers important benefits for the world's ecosystems.
Third, many of the horror stories told by exploitation critics result from reparable flaws in the patenting system. The creators of the TRIPS regime themselves have sought to tread a middle ground between "the long term social objective of providing incentives for future inventions and creation, and the short term objective of allowing people to use existing inventions and creations." The strictures of the American system -- while highly beneficial -- need not apply outside the United States.
Furthermore, WTO members might consider a humanitarian exception to patent protection under which patent restrictions might be temporarily eased to alleviate particularly acute suffering. A good example of such cooperation can be found in the case of AIDS, where several drug companies arrived at an agreement with the government of South Africa to make generic drugs more available at a discount price. In short, the benefits that patenting life bestows on humans and other creatures exceeds the costs it imposes, costs that can be minimized and ought not discredit the practice itself.
In the particular case of Brazil, all of these elements coalesce. It is, of course, ironic to hear Brasilia insist that products deriving from its flora and fauna are its own dedicated property -- even "patrimony" -- when its policies erode the intellectual property of international drug developers. Restricting the cultivation of naturally-occurring drugs to Brazilian researchers is rather short-sighted and will only thwart whatever innovation the government wishes to engender.
In the United States, by contrast, anyone of any nationality may obtain patent protection over their own invention; our system, for all its flaws, fosters the dissemination of ideas and knowledge while Brazil's program would cabin such know-how within the country's borders.
Still, it's somewhat gratifying to see Brazilians begin to appreciate the value both of intellectual property, albeit in a skewed fashion, and respectful stewardship of life forms. If Brazilian scientists wish to collaborate with tribesmen to make money by creating medicinal remedies that will benefit humanity, more power to them.
Michael M. Rosen, TCS Daily's IP columnist, is an attorney in San Diego.