Whose Gene Is It Anyway?

1999-06-01

Traditionally, patents are a way of rewarding people who invent something new. If someone invents something useful such as a new machine, or a new way of processing rubber, he can apply for a patent. Once he has the patent, nobody else can use his invention without his permission. Even with permission, the user must pay a patent fee. In this way, inventors recover the cost of their research and make a profit from their work.

Patent Laws

Patents are also applied to agricultural crops. For many years, plant breeders have been allowed to patent a new variety that they have brought into being. To be recognized as new, a variety must be a unique combination of genetic material. Usually the government granting the patent carries out a check, to make sure thevariety really is new and not just a repeat of a variety already in use. Then the company which holds the patent has the exclusive right to produce and sell the seed for three or five years. There is not usually any restriction to prevent farmers collecting seed from the fields and using it for the following season.

Patents Over Natural Life Forms

A milestone in the development of of patent rights was the Chakrabarty case of 1980, when the United States Supreme Court decided to extend patent rights to cover life forms. With the rapid growth of biotechnology, researchers in the United states were permitted to patent gene sequences which they had described. The agreement on intellectual property (IP) rights under WTO has also extended traditional patent rights. Recently, countries belonging to OECD (Organization for Economic Cooperation and Development) have joined the United States in deciding to grant patents on DNA sequences.

In the last few years, thousands of patents of genes, cells and even whole organisms, have been granted. These include patents granted for soybean, the neem tree (a traditional Asian biopesticide), cotton and various human genes.

Furthermore, farmers planting biologically engineered crops are not allowed to save seeds to plant the following year. Once these crops contain the terminator gene, which makes harvested seed sterile, this will not even be possible.

Impact of Patent Laws on Asian Farmers

What do patents of this kind mean for Asian farmers? They are granted by national patent offices, and are not recognized in many countries abroad. As the law stands at present, Asian farmers are most likely to be affected if they are growing crops for export. Patent fees may have to be paid if crops which contain patented DNA sequences are exported to countries which hold the patent rights. The recent controversy over patents for Jasmati and basmati rice (see below) shows the kind of problems which may arise.

However, if these patents of plant genes become accepted internationally, the effect on Asian farmers may be dramatic. Companies which have patented DNA sequences would have rights over all varieties and crops which contain those genes. This might give them a global monopoly over an important Asian crop.

The Case of Jasmati Rice

Jasmine rice is a fragrant Thai variety which is famous all over the world for its delicious aroma and taste. It has been developed by Thai farmers over hundreds of years. In 1997, a US firm, Ricetec, was awarded the trademark for a rice called "Jasmati". This is described as the Texas-grown copy of jasmine rice from Thailand. However, it is genetically different from Thai jasmine rice, being derived from an Italian variety.

Thai farmers are worried that the use of the "Jasmati" brand will deceive consumers into thinking they are buying Thai jasmine rice. Thailand is a major rice exporter, and jasmine rice makes up more than a quarter of Thai rice exports each year.

Ricetec has also been awarded a US patent for the breeding of basmati rice, a traditional long-grain rice from the Punjab. The patent covers basmati rice grown anywhere in the western hemisphere.

There have been a number of demonstrations by Indian and Thai farmers who urge WTO to prevent companies from patenting rice varieties that originate in Third World countries.

Conclusion

Many of the plant species now being patented in the West are indigenous to Africa, Asia or South America. If they are being grown as crops, they have received hundreds of years of selection and improvement from generations of farmers. Many people feel that by granting patents over these genetic materials, Western countries are stealing the natural resources and cultural heritage of farmers in the Third World. It is seen as a kind of "biocolonialism".

On the other hand, developments in biotechnology mean that genetic materials can now be used in new ways. Useful genes can be transferred into other varieties or species. Before genetic resources can be used, they have to be identified and characterized. Supporters of patent rights point out that scientists who describe genetic sequences are creating a new kind of productive resource, and this should be rewarded.

There seems an urgent need for an international consensus which takes both sides into account.