Whose Property, Whose Rights?
On a brisk, sunny afternoon in October 1993, Isidro Acosta, lawyer and President of the Guaymi General Congress, met in Geneva with Adrian Otten, the senior GATT official responsible for "GATT TRIPs." GATT, of course, is the General Agreement on Tariffs and Trade. "TRIPs" is the little-known "Trade Related Intellectual Property" Agreement, which was then being negotiated by governments from around the world. Mr. Acosta had one pressing question: "Was there anything in the proposed TRIPs agreement that would exclude human genetic material from patenting?" The answer then was an unequivocal "no." Two and a half years later, with GATT TRIPs now in force, the answer is still "no."
Acosta's interests in GATT TRIPs was not academic. He had learned only weeks before that the U.S. government's Secretary of Commerce had laid patent claim to a "cell line" from a 26-year old Guaymi mother of two. If granted, it would give the U.S. government the exclusive right to decide who could use the cell line, and at what cost. The Guaymi General Congress had already asked the U.S. to drop its claim, and Acosta was now in Geneva to protest it and to ascertain what he, and the Guaymi whom he represented, could do to kill it. Virtually overnight, Acosta and the Guaymi people from a remote comer of Panama found themselves in the middle of a controversial international debate about "life patenting." It was a debate that had been brewing for some years in corporate boardrooms and obscure publications, but it came to public attention with this patent claim because of the stark ethical questions it raised - about the private ownership of (human!) life, the meaning of prior informed consent, and the fast-growing business of pharmaceutical "bio-prospecting" for commercially useful genes.
RAFI had analyzed life patenting for two decades, but was drawn into the debate about "human patenting" only after unearthing the Guaymi patent claim. We had argued for nearly 20 years that intellectual property claims over food crops would jeopardize the world's food crops would jeopardize the world's food security, by placing the genetic base of out food supply under corporate control. We had recently turned out attention to micro-organisms. But our research had not, until then, focused on human patenting. We had document how the multinational seed industry rallied overwhelmingly on the diverse seed stock of farmers in Africa, Asia and the America for their plant breeding, the Americas for their plant breeding, and we wondered if the same pattern was true for biotechnology research that used microorganisms - such as fungi, bacteria and viruses. To answer this question, we were doing a country-by-country computer search of microorganisms in the American Type Culture Collection (ATCC) to see if it contained biological deposits from developing countries, and if so, whether any of them were under patent claim in the U.S. (The answer in both cases was "yes.")
It was in searching the ATCC data for microorganisms from "India" that RAFI stumbled across the patent claim on a Guaymi "India(n)" woman's cell line. Alarmed by this unexpected turn of events, and with help from the World Council of Indigenous Peoples and the World Council of Churches, we set about alerting the Guaymi. They took action, and RAFI quickly broadened the scope of its research to include data-gathering about intellectual property claims on human genetic material.
Soon after Isidro Acosta's 1993 trip to Geneva, the U.S. government dropped its controversial Guaymi claim. But concern about human patenting heated up. More patents and patent application on human genetic material were documented. Two new U.S. patent claims, this time on cell lines from indigenous people in the Solomon Islands and Papua New Guinea (PNG), sparked further questions and protest. This time, the United States government did not back off. The Solomon Islands government, like the Guaymi, asked the U.S. to drop its claim. Unlike the Guaymi, however, the Solomon Islanders were unsuccessful. They received a perfunctory letter from the U.S. Secretary of Commerce, stating simply that: "Under out laws, as well as those of many other countries, stating simply that: "Under out laws, as well as those of many other countries, subject matter relating to human cell lines is patentable, and there is no provision for considerations relating to the source of the cells that may be the subject of a patent application."
As if to prove their point, the U.S. Patent Office granted patent number 5397696 on March 14, 1995, despite rumors that the U.S. government was actually changing its policy and would likely drop these two South Pacific patent claims. The patent was in five parts, one of which gave the U.S. government patent protection for a cell line from a 20-year old Hagahai man from Papua New Guinea.
Into this mounting controversy about human patenting marched the Human Genome Diversity Project (HGDP) in 1993. Brainchild of social scientists and geneticist from the U.S. and Europe, and later to come under the wing of the Human Genome Project (which had already begun to "map" the human genome), the HGDP proposed to collect tissue samples from over 700 distinct peoples worldwide. Not surprisingly, many of these people - and particularly the many indigenous people among them - were outraged when they discovered they were once again to be targets of studies, conceived and run by researchers from the dominant cultures of North America and Europe.
Many indigenous people were concerned about the nature, purpose and control of the HGDP. They also had serious questions about the possibility of patenting, which for many was a totally foreign and highly distasteful prospect. Could the thousands of human check scrapings, blood and hair samples to be collected under this initiative end up under patent claim somewhere? Would they be used in pharmaceutical producer development? Would they end up making large profits for the big drug companies? Would the people whose tissues were sampled have any say in how they were used or whether they were patented? These were questions that RAFI was also asking. So far, the answers have not been reassuring. The HGDP has tried to allay people's fears. But to date, there is nothing in international law that can assure those who oppose life patenting that human tissue samples collected by the Human Genome Diversity Project (or projects like it) will not be used by corporations which ultimately slap patents on them. On the contrary, intellectual property practice and precedent are moving fast in the other direction. And in January 1995, an international meeting of human genome scientists in Paris agreed that the patent system was the "mechanism of excellence" for commercializing the results of the Human Genome Project. So what is the concern about patenting?
Most profoundly, it is a matter of ethics, morality and world view. Many people, including many indigenous people, believe that living organisms, and the genetic code that determines all their inherited characteristics, should not be privatized; that living things should not be subject to the monopoly control that intellectual property protection provides. Yet, intellectual property concepts and laws, originally created to protect the mechanical inventions of Europe's industrial revolution, are now being used to corner the market over life processes and living things: plants, animals, microbes and their genetic parts. By a legal sleight of hand, entire species, whole living organisms, their inherited traits and the processes of life itself have been dubbed creations of human genius and have become patentable, mostly behind closed doors, and with minimal public debate. Opponents to life patenting are concerned that the science and technologies of genetic engineering have vastly outstripped the social and legal framework in which they occur. They see precedents being set, almost daily in the U.S. and Europe, which entrench these trends and call for a fundamental review of innovation and intellectual property rights as they relate to living things.
In 1993 and 1994, two new, legally binding international agreements came into play which effectively serve to globalize intellectual property laws. The first, the Convention on Biological Diversity, was adopted at the "Earth Summit" in Rio de Janeiro in 1992 and came into force in December 1993. The second, the GATT TRIPs agreement, was signed in June 1994. For the first time in history, it obligates all signatories of a global trade accord to adopt legislation for intellectual property - including over life forms. The two agreements, therefore, specifically strengthen life patenting: the GATT by obligating all 118 signatory governments to pass IPR legislation over life forms, and the Biodiversity Convention by stipulating that such legislation must be respected.
In this context, precedents that are now being set in the industrialized world for life patenting, and especially for human patenting, take on a special significance. By the year 2004, all but a handful of the "least developed" GATT signatories must implement its intellectual property provisions. Between now and then, "accepted" life patenting practice in North America and Europe can effectively set the standard for the whole world. For this reason, public debate on the issue of life patenting must happen now if it is to be anything more than a post mortem on what might have been done - "if we only knew then what we know now." GATT TRIPs comes up for review in 1999. It's not too late to change the agreement, though it will be an uphill run. The industrial biotech giants, with large legal departments and more money than many countries, have lobbied hard and successfully for life patenting; they have the jump on those of us who oppose life patenting. They pushed through GATT TRIPs and are pushing to extend the limits of what is patentable. Concerted action is needed not if the ground rules are to be changed. Article copyright Cultural Survival, Inc.