Patenting Genes

May 21, 2004 10:28 AM

Monsanto Wins Fight to Control PlantThe Canadian Supreme court sets international precedent by ruling that since Monsanto holds a patent on a gene, it can control the use of the plant. So does this mean that in the future that an engineered human gene could be patented, and therefore if you receive this gene you will have to make royalty payments? And if you renege on paying can they repo the gene?
posted by batboy (34 comments total)

1) Make *anything* resistant-Gene, including Genes that let cats watch reruns of Friends without seizures and green colored mouses

2) Exterminate out of market anything that doesn't contain a patented gene claiming it's unsafe even if it was used for the last 3 thousand years.

3) Make plants/animal sterile so you need to buy them each and every year.Claim this is good for public for reasons contained in Nostradamus books, in Koran, Bible et al.

5)........?

6) Profit !!! Lot of Profit ! Tons of Profit ! Everybody must eat.
posted by elpapacito at 10:53 AM on May 21, 2004

patenting genes and protein sequences is the worst idea ever.
posted by rhyax at 10:59 AM on May 21, 2004

Privately controlled life. Eek. And I thought God was pompous.
posted by velacroix at 11:25 AM on May 21, 2004

All your food production are belong to us, and other tired but apposite phrases ...

The UN has finally chipped in with the "life is for [our] profit" brigands, spouting the same old shit the GM Corps. were at the beginning of their campaign [we just want to help the poor and the hungry!], and the EU has licensed GM sweetcorn for human consumption to stifle a trade war which the US was threatening it with.

We live in interesting times.
posted by Blue Stone at 11:50 AM on May 21, 2004

So does this mean that in the future that an engineered human gene could be patented, and therefore if you receive this gene you will have to make royalty payments?

Monsanto: your ass belongs to us. No, seriously.
posted by XQUZYPHYR at 11:53 AM on May 21, 2004

Placed in the "astoundingly bad ideas" catagory, there was a previous ruling that plants downwind of an experimental GM field, that had been wind cross-pollinated, were the property of the owners of the experimental crop. The farmer downwind had to pay royalties, for an unsolicited "gene-stray."
On the plus side, modified genes are found to travel through the ecosystem a lot faster than expected. So if an enormous number of farmers suddenly get "contaminated" crops, governments will be forced by them to countermand such judicial decisions.
A scary prospect comes from having your crops "contaminated" by 'terminator' genes, that are third generation sterile--depriving you of new seed grain.

Last, but not least, when is an organism "unique?" For example, experiments on chimpanzees are legal, on humans they are not. Yet the two species share 98-99% of their genetic code. If you modify a chimpanzee to "make it more like a human", can you patent it or experiment on it, even if it is of human intelligence?
posted by kablam at 11:57 AM on May 21, 2004

I read that as "Monsanto wins fight to control planet." Phew...
posted by Krrrlson at 12:43 PM on May 21, 2004

[...] since Monsanto holds a patent on a gene, it can control the use of the plant.

Maybe I'm missing something here, but that sounds pretty reasonable to me. Let's say I design a drug and hold the patent on it; then I get to control the use of that drug until my patent runs out. Why shouldn't the same rules apply if I design a plant? Farmers aren't forced to use the new plant. If the market is lucrative there will probably be competitors before long. And the patent will run out eventually.
posted by Triplanetary at 1:22 PM on May 21, 2004

damn you, Krrrlson!

(geez, twice in three threads. I gotta show up sooner)
posted by sharpener at 1:27 PM on May 21, 2004

um, triplanetary...sometimes farmers ARE forced to use the plant...cross-pollination and forced royalty payments have already been mentioned.

but then does this set some sort of precedent? we're not talking about machines and inventions (the reasons patents were invented) we're talking about some pretty esoteric things.
posted by taumeson at 1:40 PM on May 21, 2004

Farmers aren't forced to use the new plant.

In some cases, they are. Part of this lawsuit was based on the claim that these seeds drifted into an adjacent plot of land. Suddenly nature has assisted in patent violation. Furthermore, the biggest issue with these GM plants is the companies that own them refusing to agree to mandatory notification of modified seeds... even when those seeds just happen to have implanted "kill genes" preventing them from replicating and being re-usable like, you know, nature freakin' intended.

Not only does this set a nightmare of farmers being forced to use whatever the system that distrubutes the seed determines, it could, through the miralce of science, force them to do it every year for eternity.
posted by XQUZYPHYR at 1:46 PM on May 21, 2004

This is bad, bad juju. Question for the legal beagles in the crowd, how often do American courts look to Canadian courts for precedent?
posted by dejah420 at 1:54 PM on May 21, 2004

I am against patents on living things or anything that can allow others to control a specific living thing. I am also against alterations done to living things such as the Roundup-proof crops, but elimination of these pantents would get rid of the incentive to create mutant plants from hell anyway.

Crops are being created that are immune to systematic herbicides and which easily contaminate other crops, not only causing headaches for the farmers but insuring that those of us that do not want these genetically altered THINGS going into our bodies will ultimately have no choice. With these crops cross-pollinating with whatever is around them, one can easily see a scenario a few years down the road where it is impossible to grow unaltered vegatables.

There is also the issue of superweeds which has already been discussed on this site in the past.

And the fact that clear links have been found between glyphosate (the killer in Roundup) and non-Hodgkin's lymphoma. But I would not want to suggest that we care about that, cancer is certainly less important than the profits of Monsanto, of course.
posted by bargle at 2:20 PM on May 21, 2004

Monsanto is just about the most evil of all the evil corporations on the surface of the planet Earth, and I'll bet they can give the ones underneath a good run for their money too.
posted by soyjoy at 2:24 PM on May 21, 2004

Part of this lawsuit was based on the claim that these seeds drifted into an adjacent plot of land.

There seems to be many questions tangled up in this case and ensuing discussion: were the seeds spread by accident (lower courts rejected that claim), can you patent a gene, and are GM crops dangerous. Patenting a gene you have designed still sounds reasonable to me. And there is a fourth issue:

Not only does this set a nightmare of farmers being forced to use whatever the system that distrubutes the seed determines, it could, through the miralce of science, force them to do it every year for eternity.

Any system that distributes products that the consumers don't want is a bad system. If we truly worry about farmers' right to choose, let's change that system instead of stopping product innovation.
posted by Triplanetary at 2:41 PM on May 21, 2004

So does this mean that in the future that an engineered human gene could be patented, and therefore if you receive this gene you will have to make royalty payments?

Right now there are just a few ways to get that gene into you - the fun way (your parents have the fun, not you) and the artificial way (say for instance through an engineered virus). If, say, that gene prevents all cancers it might be pretty valuable If I have the patent and you violated my patent and injected it into yourself with a virus I might want to ask you for a royalty. If you got it from your parents then they had it and that probably invalidates my patent by being anticipatory prior art.

The interesting question, what if someone pays for the virus, and then passes it on to you without you asking for it, say by sneezing on you (just like may have happened to the farmer in the case at hand). The law says that the patent holder can control making, using, selling or importation of the patented product, the gene. Are not you using it to now prevent cancer, albeit without your consent? There may be a hole in this law that requires patching either by the courts or Congress.
posted by caddis at 3:25 PM on May 21, 2004

Isn't patent law hopelessly fucked anyway?

And I don't know about you, but I'm hoarding food now for when THE GREAT BIOENGINEERED FAMINE comes. It'll be right after THE COMING GLOBAL SUPERSTORM. I'll be IN MY BUNKER IF YOU NEED ME.
posted by solistrato at 3:50 PM on May 21, 2004

triplanetary: the problem isn't in the idea of recognizing somebody effort and achievements with a patent, but rather in how and for how long does one exploit the patent and what are the effects of patenting a gene on technical developement and markets.

Say that I patent a gene that makes apples resistant to *somedisease* and obtain a patent on it (let's for a minute disregard the fact that the ones who discovered the gene may not be the ones who get the exploitation patent).

Now my disease resistant apples would make a lot of producers-farmers happy (assuming of course that they're good for human consumption with no side effects)..they would certainly pay a premium price because they'll save on pesticides and plant care. The consumer gets a nice apple, everybody is happy ..or is everybody ?

Sooner or later everybody tries to produce the least expensive apples (the disease resistent ones) because of "competition" on market ; that in good theory should drive the price of such an apple to incredible lows as many push the superapple on the market ; sooner then later you got only an handful of producers that can make enough superapples to dominate the market and still make a profit.

Or maybe they discover some way to make the apple not only disease-resistant, but more rich in vitamins. Consumer is happy, but the little company who discovered this modification can't use Monsanto patent without licensing..so they end up selling their patent because of course monsanto can make better profits by buying the patent then by licensing the disease resistence.

Or maybe Monstanto enriches the food with vitamin with their own patent, but anyway they have little incentive to introduce it to market as they already have some profiteable licence they can exploit ; they could introduce it for diversification, but what is really needed to make them tapdance is competition. There's no guarantee somebody will be able to compete.

Meanwhile, the higher costs involved in producing "normal" apples drive normal apples literally out of the market and maybe to extinction. The smartasses at *bigcompany* don't want to give the superapple to everybody for free, they want to sell it. In order to prevent superapple from spreading for free all over the planet they make it sterile, so that only they can sell them (or they make it "contagious" so that soon they own an entire species)

So far, setting aside the fact that we know nothing on the long term effect of modified food on humans, we could certainly let a company patent -a plant- with a certain combination of genes...but NOT singles genes or significant combinations of genes, as if you hold a gene you hold all the plants with that genes or combination of genes.

You can see the chilling long term chilling effects of this ? Don't buy into the propaganda of the "happy consumer, company doing the best for consumer" companies are in business only for monetary profits or to obtain power over sectors of market, or with oil on entire nations.
posted by elpapacito at 3:51 PM on May 21, 2004

Expanding upon this, a case was just decided where the Federal Circuit choked upon a similar issue. Smithkline Beecham licensed a patent to paroxetine and its salts and then started selling paroxetine hydrochloride as the antidepressant Paxil. Years later they filed a patent for paroxetine hydrochloride hemihydrate (the original lacked water, this has water molecules attached and is more stable). Apparently, the presence of these molecules in the environment flips some of the regular ones (anhydrous - lacking water) to the hemihydrous form, thus making practical production of the original medicine impossible. The court seemed fine with the legal concept of banning further production of generic Paxil (the original patent is now expired) containing trace amounts of the hemihydrous form despite how this came about. They did, however, find a way to invalidate on other grounds the patent on the hemihydrous form. So where does this complicated mess leave us - with another, but related, hole. Pollute the environment such that people can not help but infringe your patent and you get to sue them successfully.
posted by caddis at 4:02 PM on May 21, 2004

since Monsanto holds a patent on a gene, it can control the use of the plant.

The issue with this case is that Monsanto proved they were completely hopeless at "controlling" use of the plant. A major catch with patents and living organisms: living organisms can reproduce. If I get a patent on my new improved pencil sharpener, it's not going to go multiply on it's own and end up by accident in my rival inventor's pencilcase. Canola plants, on the other hand, have no such qualms about spreading their seed around.

I would have liked to have seen, if nothing else, a more intelligent and logical decision on this case. This decision does not deal with an important issue in a sensitive manner.
posted by Jimbob at 4:46 PM on May 21, 2004

Just to expand on that (IANAL or an IP expert), my logic goes like this:

With traditional patents, the person violating the patent pretty much has to make a conscious decision to do so - they have to make a physical effort to produce the product, and violation should be pretty clear-cut.

With more recent things like patents on software code, there are some grey areas. Someone may work as a programmer for one company, see code, then go to work for another company and, consciously or not, employ similar functions. I understand, however, programmers have various methods to ensure code is not "dirty", so patent violations may occur by accident, but that can be protected against.

With living organisms, the "violator" has no reasonable way of preventing contamination. They have no control over how the patented organisms may reproduce and come into their possession. There is a high probability that patent violations may occur in a completely uncontrollable fashion, and it makes you wonder if traditional patents can be reasonably applied to living organisms.
posted by Jimbob at 4:57 PM on May 21, 2004

Anyone else see similarities to P2P networks? That is, with things that are reproducable (data :: living organisms) once the cat it out of the bag, your work becomes public domain by default.
posted by Civil_Disobedient at 5:20 PM on May 21, 2004

It seems a good part of the problem *is* the delivery system precisely because that system can easily be natural forces, i.e. birds, wind, water, etc. But it also concerns Bio Piracy, a form of theft where (in some cases) someone tries to patent a grain or process that has been in constant use, sometimes for thousands of years.

One of the major fights is supposed to be ruled on today by the Canadian Supreme Court. Of course, since it relates to the natural world, it didn't recieve much attention when discussed here previously. The case is Monsanto vs Schmeiser and has been ongoing for 5 or 6 years now.Percy's website is here. It contains links to the decisions and related materials.

The fight is endless and often ignored by the mass media in the US. Basmati rice and Chapati are two of the higher-profile ones.

Nap Hal for Chapati. More here, and here. I also found an audio link to a show on NPR, but I haven't listened to it.

The Basmati rice story is discussed about halfway down in this Making Contact transcript.

As a dedicated gardener/small farmer, I am very concerned about the loss of much of our bio-diversity in our seed choices. I can't find the exact number, but I believe over 70% of the varieties we used to grow are now lost forever, and not because they don't grow well, but because they don't fit into a corporate model of uniformity and profitability. Seed Savers Exchange is a good place to see what some are doing to try and preserve what we have left. See also the KUSA Seed Foundation (no website and I'm not sure of their status atm). I really don't know if the doomsday predictions regarding our food supply will come true (certainly the previous ones haven't), but I am very concerned that people and communities (indiginous and otherwise) will lose both their previous efforts and future choices to ruthless corporations.

(If I had more time I could dig up dozens of links regarding peoples concerns over this subject. From home-gardeners to farmers to scientists, there is a plethora of outrage over the non-education and deception going on about this)
posted by a_green_man at 5:36 PM on May 21, 2004

With traditional patents, the person violating the patent pretty much has to make a conscious decision to do so - they have to make a physical effort to produce the product, and violation should be pretty clear-cut.

True, they generally have to try to make the product. However, they do not need to know about the patent to infringe. If they are completely ignorant of the patent and innocently sell an infringing product they can still be successfully sued for infringement.

With living organisms, the "violator" has no reasonable way of preventing contamination.
I think that is the real problem here. There are evolving cases where the actions of the patent holder make avoidance of the patent impossible. The law needs to recognize and accommodate these instances.
posted by caddis at 12:44 AM on May 22, 2004

when monsanto makes a plant, starting from scratch by all means let them patent it, but when all you do it cut and paste, you have not created anything.

They have stolen something from us, they co-opted something larger than themselves for something as petty and trivial as profit. Life has created something and they have just changed it. We are life, the genes they say they own are in our heritage as well, they belong to everything, not just the most selfish people that can use them in the most novel way first. They "own" roundup ready corn now, because they stuck one gene in it. Did they make the rest of the genes? No. Do they know what they all do? No. Do they own all the other genes in the corn? Do they own the genes in "their" corn that are also in me and you?

What if the product of that patented gene is self-aware, do you own a patent that is part of me? Do you own me? Do you own my children?
posted by rhyax at 12:59 AM on May 22, 2004

Late to the party, but... While I also disliked this ruling, it is likely to only have narrow application given the facts. In this case, Percy Schmeiser did know he was harvesting Roundup Ready canola; he wasn't truly an "innocent bystander". So the court was in a bit of a bind, in that despite what they might want to decide, they did have a very specific fact situation in front of them. As you can see, it still was acrimonious as there was a sharp 5-4 split.

What a lot of people are hoping is that this will encourage the government to actually start passing legislation on these issues. So it might turn out okay after all. But hey, I'm an optimist.
posted by livii at 6:03 AM on May 22, 2004

livii - genetically modified corn genes have contaminated, now, many native corn stocks and are encroaching on the very epicenter where corn was believed to have been first domesticated - Oaxaca, Mexico, which is the repository of greatest corn genetic diversity.

Meaning - such half baked projects such as "cut and paste" genetic modification have already run amok and are undermining and destroying the horticultural work of hundreds of generations of farmers.

This constitutes a major crime - as a type of intergenerational theft, of genetic diversity which guards against devastating crop blights. It is a theft, even, of part of th historical record - as preserved in DNA.

The Irish Potato Famine, anyone ?

How is this not a form of terrorism ?

"when monsanto makes a plant, starting from scratch by all means let them patent it, but when all you do it cut and paste, you have not created anything.

They have stolen something from us, they co-opted something larger than themselves for something as petty and trivial as profit......" (rhyax) - There are so many cogent, eloquent and brilliant opinions voiced in this thread, I'd nominate it for some sort of "best of" Metafilter list.

The logical extension of the court decisions supporting ownership/patent rights to cut-and-paste life forms is this - life forms without rights, permanently enslaved life.

The fiery, lidless eye of Monsanto seeks to breed hordes of genetically modified slaves to do it's bidding.
posted by troutfishing at 7:13 AM on May 22, 2004

Seems to me the farmer's field was "raped" by the Monsanto pollen. Why the hell should he then have to purchase new uncontanimated seed, especially if prior practice had been to use his own seed year after year?

That seems to be to be as insane as a rapist claiming his parental rights over a rape victim's child.
posted by five fresh fish at 10:05 AM on May 22, 2004

If someone creates a piece of self-replicating data which copies itself onto other computers without consent of their owners it is considered a crime. The creators of the computer virus or worm can go to prison, even if the release on the net was "accidental."

Also, polluting another person's property or public land is illegal. (Well, there are corporations getting away with this.) If I started dumping my garbage (even if it were non-toxic) on my neighbor's lawn or a city park I know I'd be getting a visit from the police.

How is the case of engineered genes invading other people's property different? Corrupting someone else's genetic holdings seems to be worse than computer crime because you can't back-up and reinstall the complete genetic diversity in the crops on your land. Shouldn't these corporations be heavily fined for each occurrence?
posted by D.C. at 10:49 AM on May 22, 2004

It's actually more like "copies itself to your computer, and you then use it profitably" or "dump your garbage, and your neighbour then starts selling it to others."

The decision came down to this: the farmer deliberately planted the known-"infected by GM" seed the following year, which the judge decided was A Bad Thing.

It wasn't about how he got the GM seed, nor about how he actually farmed the GM seed, but that he planted it knowing it was GM seed.

Kind of like knowing it was a computer virus that was making you money, or knowing your neighbour's garbage is actually valuable.

---

AskMeFi Question: If a prize-winning bull/stud breaks out of its paddock and impregnates the neighbour's cows, is the neighbour allowed to sell the calves?

This must have been known to have happened some time over the past five hundred or so years. What did the judge decide in that case?
posted by five fresh fish at 3:03 PM on May 22, 2004

elpapacito> So far, setting aside the fact that we know nothing on the long term effect of modified food on humans...

Agriculture has involved the manipulation of crop reproduction to generate bigger, juicier plants for at least 7000 years. Humans have been eating those foods for just as long. It would be naïve to believe that most human foods look and taste like the original wild plant.

The patents are a different problem, but at least in Canada (correct me if I'm wrong) they're limited to 20 years. Does copyright apply in this case? If so, it's automatically assigned and is for the life of the author + 50 years.
posted by snarfodox at 5:31 PM on May 22, 2004

Yes, FFF, but my comments weren't meant to address what this guy did with the seed. I have no problem with Monsanto having a patent on that gene. The problem I see is Monsanto violating the property rights of others.

Should Monsanto be able to take to court people using* that gene without permission? Yes. Should farmers who have had their crops infected be able to sue Monsanto? I think so.


* In this case, the article notes: "Schmeiser did win a small victory. He won't have to pay his earnings from the 1997 crop year to Monsanto, because he never sprayed the crop with Roundup, and therefore didn't profit from the patented gene."
posted by D.C. at 8:10 PM on May 22, 2004

None of these finer points address the fact that Monsanto's inventions are polluting and degrading centuries or millenia of genetic heritage.

Imagine, for example, having the ability to erase the Holocaust via genetic modification. Monsanto's projects are on that scale and level of ugliness.l
posted by troutfishing at 8:36 PM on May 22, 2004

snardfox: yes indeed as far as I know manipulation of plants wasn't invented yesterday or a year ago and yes, we probably have eaten some hundred variants.

Yet what some companies are doing is not just taking plant A and plant B both of similar plant species and try to breed them togheter to see what happens. We're talking about taking -genes- from source plants that wouldn't naturally breed with target plants, it's a mix against nature.

Or even, at times, taking and mixing genes from completely different species of animals : for instance I remember reading about an aquarium fish that glowed during night because its dna was modded with a gene from a jellyfish !
The effect is nice and the short-term effect of "marketing coolnes factor" is achieved, yet what could happen if such a fish is released in the wild ? What naturally occuring genetic mutation could happen ?

Now there's nothing necessarily wrong in doing something that goes against natural "laws" (medicine being an example, in theory we all should die because of a simple food intoxication) yet we must be extremely cautious , we can't just move the risk factor from company X to consumers, company X must take all the risks and I mean all of them ; but given that probably no amount of money could repair widespread genetic damages, we just can't let any company play god at our expenses.
posted by elpapacito at 8:42 AM on May 24, 2004