Patenting life a dangerous step.

Last December, the Supreme Court ruled that a higher life form could not be patented under existing patent law in Canada. In a 5:4 decision they argued that the current law could not be stretched to include higher life forms. They concluded that if the government wished to change the policy on patenting, it is they who must do so.

This, in effect, was what the Canadian Council of Churches asked for when it intervened in the case. We argued that to patent higher life forms would be a significant change in public policy and as such should not be decided on by the courts, but rather by parliament with proper consultation and debate. We got what we asked for. Where do we go from here? The biotechnology industry will likely push for a change to the legislation. We need to be ready to take part in the debate that will follow. So what are the issues?

The lawyers for Harvard University argued that researchers need to be assured of a financial reward for their work, thus promoting medically beneficial research. These sound like important benefits, but it is not clear that they would really be achieved by patenting the mouse. Harvard already had patent protection on the gene sequence that it added into its mouse and on the process by which the gene was introduced. They did not need to patent the mouse in order to profit from the research. In addition, it does not seem to be the case that patenting always promotes research. There is evidence that patents that are taken out early in the development of a technology can sometimes inhibit further research. For example, the ownership, by one company, of the gene implicated in breast cancer has discouraged scientists working in other companies and research institutions from doing research that might lead to a treatment for the effects of this gene, since the company with the patent rather than the researcher would profit from the research.

Harvard also argued that we own animals anyway; patenting is just a form of ownership. But there is a huge difference between owning individual animals and owning whole breeds or species. Imagine the impact on farming if the breeds currently used were patented, and farmers had to pay licence fees to the company holding the patent in order to continue to have livestock on their farms -- even livestock they bred themselves. More than this, the patenting of higher life forms is a huge extension of the commodification of life. When something is commodified, its value is understood in economic terms and it can be freely bought and sold. Many believe that our current environmental crisis is, in part, a result of the commodification of our relationship with the natural world. If this is so, to take that commodification further at this time would further distort that relationship and exacerbate our problems.

Most importantly, we need to see this case against the background of the global expansion of the use of patenting. The patent system is just one way that new ideas are protected. In recent years the types of things that can be patented has grown exponentially. Patents are held on bacteria, genetically-modified plants, or plants that have been "discovered" by biotechnology companies, and even on human genes and cell lines. Patenting was intended to protect and encourage inventors for the benefit of all. Over recent years it has become a means by which things that have never before been owned by anyone have passed over into the private ownership of biotechnology companies. A couple of years ago, the company Monsanto even tried to take out a wide-ranging patent on basmati rice.

In England at the beginning of the industrial revolution, the Enclosure Act transferred common land into the hands of wealthy landowners and drove hundreds of thousands of people from that land into the cities and into abject poverty. What we are seeing today is the enclosure of the global commons. We are watching the biological and genetic heritage of the earth, a gift from God, which should be available to all of us, pass into the hands of a small number of multinational companies. This is not the purpose for which the patent act came into being. It is a development that threatens profound and destructive consequences for all of us.