
          The Rights to Life
          By McAnelly, LynneLynne McAnelly
          Vol. 10, No. 4, 1988, pp. 1-4
          
          
            Agriculture is on the edge of a revolution that could bring changes
as profound as the industrial revolution. From soybean growers in
Georgia to cattle producers in Arkansas, few Southern farmers will be
able to escape its implications.
            The engine of this new evolution is biotechnology-our ability to
control and manipulate DNA, the genetic blueprint of all living
organisms. With this power, it will be possible to use microbes,
plants, and animals as living chemical factories, to endow living
organisms with new traits, and even to create new kinds of living
beings.
            These advances in biology have the potential to expand our options
for dealing with environmental and agricultural problems and for
improving economic opportunities in agriculture. At the same time,
however, there are concerns that some new developments may actually
limit options for farmers and ranchers. Of concern to many farm
organizations and livestock producers is a decision from the
U.S. Patent Office in April 1987 that animals can be patented. This
was one in a series of administrative and judicial rulings that pave
the way for a corporation or individual to own the blueprints which
specify living organisms.
            The legal and economic consequences of these decisions have raised
a number of concerns that have only been heightened by the recent
Patent Office issuance of its first animal patent-for a mouse that is
especially susceptible to cancer and can be used with great
effectiveness in laboratory research. However, the patent for this
creature is broader than it seems at first glance. The patent refers
to any cancer-causing gene imported into any mammal. The implications
are staggering.
          
          
            Living Organisms and Patent Law
            A patent grants monopoly rights to an invention for a specified
period of time (seventeen years or longer). However, there are limits
on what can be patented. The invention must be novel relative to
information available at the time of the patent application. Even if
it qualifies as 
"new," the invention cannot be
patented if it is obvious to a "person with ordinary skill in the
art."
            Until 1980, living organisms were not considered patentable. Two
separate laws, the Plant Protection Act of 1930 and the Plant Variety
Protection Act of 1970, gave limited patent protection to plant
varieties, implying to many, including the Patent Office, that
Congress did not intend the Patent Act to generally cover living
organisms. But in 1980, the Supreme_Court ruled that the U.S. Patent
Act applied to genetically engineered microorganisms. In 1985 the
Patent and Trademark Office extended this ruling to all plants, and,
on April 3, 1987, to all animals, excluding humans "for the time
being."
            It is not clear how patent law will be interpreted with regard to
genetically engineered organisms. For example, although things
existing at the time of the patent application are not generally
considered patentable, things that exist in nature such as hormones,
vitamins and proteins have been patented.
            Even as seemingly obvious an "invention" as a
naturally occurring microorganism isolated and grown in pure culture
has been patented. This raises the possibility that existing genes
could be patented and leads to questions that cannot be answered about
the right of an individual or corporation to own the very genes that
make up living organisms. If individual genes can be patented, then
important naturally occurring traits that control food production
could become private property.
            For example, will a patent on a given trait preclude others from
pursuing alternate ways of achieving the trait? There also are
concerns that broad patents on fundamental traits such as oil
production in seeds or milk production in mammals may then apply to
all crop plants or animals developed with the trait. For example, a
patent on a gene controlling milk secretion in mice might also be
applied to cows, goats and horses. It remains for the Patent Office or
Congress to decide on the scope of patent protection on living
organisms, and the first patent granted is, as already noted, quite
broad.
          
          
            The Economic Power of Patents
            The corporation or individual who holds a patent has exclusive
rights to the patented object. The patent holder can collect whatever
royalties the market will bear and impose restrictions on the use and
the reproduction of the item.
            The extension of these monopoly rights to the raw materials of
agriculture-plants and animals-creates a whole new category of
property ownership. And it is a kind of ownership which essentially
will be closed to many people now in agriculture, from farmers and
ranchers to livestock breeders, and many seed companies.
            Due to the relatively high cost of genetically engineered
livestock, it would be difficult for patent holders to try to get all
their financial return from the initial purchase price. Therefore,
according to William Lesser, an agricultural economist at Cornell,
"it is highly likely that animal patent 

holders will attempt to
enforce patent rights over subsequent generations." According to
the Patent Office, royalties would be paid on the sales of patented
animals and on all the generations of their offspring produced over
the seventeen-year lifespan of the patent. Such an agreement would be
binding on the original purchaser and on subsequent purchasers of
progeny. Lesser predicts that enforcing patent holders' rights will be
feasible in the livestock industry, especially in sectors where good
breeding records are already kept.
            A difficult issue to be resolved is how to determine the extent and
value of expression of the patented characteristics in succeeding
generations. A patent does not guarantee that the trait will show up
in the offspring. Multigenic traits (most agriculturally important
traits such as weight and yield are controlled by many genes) are
quite likely to be "diluted" by recombination in
subsequent generations.
            In addition, patented animals are likely to be more expensive
initially than conventionally bred animals. Farmers and ranchers, even
those with large operations, will usually not be able to obtain animal
patents or to take advantage of the benefits of patented livestock
produced through biotechnology.
            Another concern of farmers and ranchers is that animal patents will
accelerate vertical integration and consolidation in the livestock
industry as happened in the seed industry after the 1970 Plant Variety
Protection Act. Large pharmaceutical and petrochemical companies have
bought out scores of independent seed companies. Predictions are that
ten to twenty major corporations will dominate the worldwide seed
trade by the year 2000.
            Referring to the concentration in the poultry industry, Cy
Carpenter of the National Farmers' Union testified to Congress in July
1987, "The almost total control of an industry by so few is a fear
that haunts all segments of agriculture, and granting animal patents
could turn those fears into a reality."
            In order to maintain control over the patent, the holder may decide
to sell his animals only to a few select operations. Or the patent
holder may decide to buy the means of production. The beef industry,
for example, may be ripe for such a consolidation; Iowa Beef Packers,
one of the "big three" meat packing companies in
the United_States, is already considering raising its own cattle. If
the livestock industry responds to patent protection as did the seed
industry, it would not be surprising to see Iowa Beef Packers acquire
the means of production and then in turn be acquired by a major
chemical/ biotech corporation such as Monsanto or Mitsubishi.
            Farmers will have to cope with extensive paperwork to keep track of
progeny from all patented animals for seventeen years through multiple
middlemen. As complicated as the situation is with a single patented
trait it becomes truly Gordian when an animal has more than one
patented trait, each with separate ownership. As a number of livestock
producers commented, the prospect of patents on farm animals presents
a paperwork nightmare.
            And who will be policing the biotechnology companies and the Patent
Office? Challenges to Patent Office decisions can be initiated only by
someone with a competing patent claim. Such legal means can be long
and expensive-beyond the means of many smaller companies and
individuals.
            The justification for patents is that they are necessary to
stimulate research and to provide the necessary incentive to undertake
research projects that may or may not pan out. The biotechnology
industry warns that without patent protection we risk losing the
fruits of our research to foreign competition.
            However, despite the absence of patent protection, research in crop
and livestock improvement at land grant universities, at USDA labs and
on private ranches generated numerous new plant varieties, livestock
breeds and champion race horses over the last hundred years. Results
from research at public institutions has usually been freely
available, in the public domain. Furthermore, market mechanisms exist
to protect new breeds developed by livestock producers and to ensure
significant financial returns.
          
          
            Patents and Research
            The assumption that patents encourage corporations to engage in
novel research directions has been challenged by various authors. For
example, research may be channeled to already patented products. Even
the new biotechnology research programs in some companies are being
driven by patents the company already holds. Many agrichemical
companies are developing genetically engineered crop plants that will
require the use of herbicides or pesticides that the
company already sells. In addition many fear that life sciences
research at public institutions may become increasingly directed into
production of patentable products with resulting decline in public
domain research.
            But most worrisome to many in the seed and livestock industries is
a growing reluctance on the part of researchers to share information
and germ plasm with other labs. This would be devastating to plant
breeding research and, in some cases, could endanger the nation's food
supply, according to the American Seed Trade Association.
            The issue of a foreign edge in patented animals is misleading. Only
the U.S. and a handful of Soviet satellite nations currently allow
animals to be patented. The European Economic Community specifically
excludes animals 

from patent protection. This would not prevent
foreign companies from obtaining animal patents in the U.S.,
however. Thus, as one farm organization pointed out, American farmers
could be in the unfavorable situation of paying royalties to foreign
biotech companies.
            It is worth noting that although humans were excluded from the
April 1987 ruling, Charles Van Hom of the Patent Office told the New_York Times: "The decision says higher life
forms will be considered and it could be extrapolated to human
beings. But for the time being, we are not going to consider
applications involving human life."
            This clearly implies that even human beings may eventually be
considered patentable material.
            Human genes are already components of biotech products that have
been patented. These applications involve using human genes to produce
pharmaceuticals such as human insulin and human growth hormone,
substances of tremendous benefit. But eventually society may ask, at
what point do we cross a barrier in manipulations with human genes?
          
          
            Response and Remedies
            A number of farm organizations including the National Farmers
Union, the League of Rural Voters, and the National Farm Organization
have expressed concern about the economic impact of animal patents on
agriculture. Recently, almost 500 Texas livestock producers told the
Texas Department of Agriculture that they are opposed to patents on
farm animals.
            The decisions granting full patent coverage to plants and animals
were judicial and administrative rulings. However, in its 1980
decision the Supreme_Court clearly left the door open for
congressional action, stating that it is up to Congress to define the
limits of patentability by amending the patent law. Many feel that it
is time for public debate and congressional action on this issue.
            Congressman Charlie Rose of North_Carolina has introduced a bill,
H.R. 3119, that would impose a two-year moratorium on animal
patents. A two-year moratorium would allow time for investigation of
the economic impact of animal patents and for discussion of the
various issues involved in patenting living organisms. For many years,
public dollars have supported the basic research that gave birth to
the biotechnology revolution. Farmers and the consuming public deserve
consideration of their concerns regarding patents on living
organisms. 
          
        
