Patents, genes and butterflies
Peter Commandeur
Keywords:  Intellectual property rights; Biodiversity prospecting; Access to genetic resources; Human Genome Project.
Correct citation: Commandeur, P. (1994), "Symposium: Patents, genes and butterflies." Biotechnology and Development Monitor, No. 21, p. 3-4.

"Are plants and Indians becoming raw material for the gene industry?" was the telling subtitle of a symposium organized by the World Wide Fund for Nature (WWF) and SWISSAID. The threatened diversity of the living world has been seen in a new light since it has become the input of the new biotechnologies and the object of patent claims. Southern states and indigenous communities demand compensation for their biological resources, while Northern states insist on the recognition of intellectual property rights on biotechnologies and their products. Opinion leaders from the North and some from the South debated uses and abuses of biodiversity in Bern, Switzerland, October 20­21, 1994.

The first keynote speaker, Jack Kloppenburg (University of Wisconsin­Madison, USA), emphasized the continuous leadership of Northern states and their scientific community in the appropriation of genetic and cultural information of Southern people in previous centuries. What has changed in recent decades, however, is the structure of the corporations interested in genetic resources. Concentrations have taken place, merging companies with interests in seeds, chemicals and pharmaceuticals. Furthermore, the companies increasingly reach out for global markets. Parallel to the rising power of business, intellectual property rights have been strengthened and in some cases extended to genetic material of plant, animal and human origin.
With the emergence of genetic engineering, in principle, any gene out of any organism can be transferred to another organism. According to Kloppenburg, this development has led to an accelerated interest in genetic diversity: "Somewhere out there, just out of reach, some organism may have what we need. And we have the best chance of finding that where biotic diversity is greatest." Consequently, an instrumental justification for biological resource conservation is being embraced, not only by biologists and environmental organizations alike, but also, in Southern states, by bureaucrats, scientists, farmers and indigenous people interested in income from biodiversity.

Payments for prospecting
According to Kloppenburg, never in history has agribusiness been willing to compensate for the use of genetic resources of the South. But now, pressured by environmental groups and Southern stakeholders, it increasingly sees that it is in its own interest to pay for preferential access to genetic materials, of which the Merck­INBio deal is a concrete example. These arrangements underline the principle that genetic material can be acquired as a normal good in commodity markets, within the existing framework of intellectual property protection. According to Kloppenburg, this principle is the main element of the Convention on Biological diversity. It legitimates the status quo of centuries of appropriation by the North of Southern treasures, while almost completely ignoring indigenous people or local communities.
Both Kloppenburg and Charles Zerner (Rainforest Alliance, New York, USA) seriously doubted whether farmers or indigenous people will benefit very much from the establishment of prospecting payments. Zerner elaborated this scepticism in his critical review on equity in biodiversity prospecting. According to Zerner, existing institutional and contractual arrangements do not address, but do implicate, the most contentious issues in the bioprospecting debate: on what legal theories and sources of law are claims to ownership or control of biological diversity justified? Will establishment of commodity values for biological organisms lead to conservation or sustainable development? Moreover, what are the relationships and respective rights of indigenous peoples and local communities, nations, and the "global public" to biological diversity and local knowledge? In order to stimulate further critical and comparative discussion of the bioprospecting arrangements, he briefly evaluated the initiatives of three bioprospectors: Merck, Shaman Pharmaceuticals, and Biotics. Whatever the imperfections, ambiguities, or flaws noted in these private sector arrangements, Zerner pointed out that these companies are among a very small percentage of corporations which have actually developed concrete policies towards the return of benefits to the suppliers of biological material.
The Body Shop International also could be included in this small group of private companies which explicitly address social equity in their relations with local communities, although it is not so much involved in bioprospecting but in commodity trade. Mark Johnston (Body Shop), gave an introduction to the company's direct 'personal' relations with suppliers of raw material, such as plant­derived oil used in hair conditioner, which "are undertaken only if the partnership will help build the primary producer's dignity, and enable the community to meet the tide of change on their own terms."
Apart from the perspectives of Kloppenburg and Zerner, bioprospecting has also been criticized because of the negative developments it could provoke. "What will be the added costs for societies of developing countries when they sell the right to use their biodiversity?" asked Vandana Shiva (Research Foundation for Science, Dehradun, India). If the gene responsible for the high protein content in amaranth is put into rice, an increasing acreage of rice could contribute to the disappearance of the valuable crop amaranth. According to Shiva, losses of this kind would never be compensated by the payments received for bioprospecting.

Reverse developments
With his analysis Kloppenburg implicitly touched a fundamental difference in the way biodiversity is addressed. For some the central issue is the conservation of biodiversity as such: the fact that rich genetic resources are being threatened is used as an argument to stop destructive new developments such as the construction of roads and dams, or the introduction of uniform agricultural varieties replacing land races. Others, however, see biodiversity in a more dynamic way, taking it as a departure point for diverse developments which would be more in keeping with the needs of local inhabitants and the environment. According to Robert Chambers (Institute of Development Studies, Sussex, UK) biodiversity could contribute to the strategy of many poor people to reduce risks, insecurity and dependence not by simplifying or standardizing but by complicating and diversifying their livelihoods and social relations. Therefore Chambers stated "diversity is not a static quality to be preserved through capture and protection, but a function of the permanence of change."
In order to employ biological and cultural diversity for diverse developments, Chambers emphasized the need for a new development paradigm, which recognises the validity and value of local people's knowledge, analysis, experimentation and learning. In more general terms Kloppenburg pleaded for reverse developments which would not start from the need of the Northern world for more productive crop varieties or for new drugs, but from the need of indigenous peoples to survive.
Shiva proposed the establishment of a system for the free sharing of local indigenous knowledge and biological resources among local communities in developing countries, independent of the agribusiness. In this way, biodiversity could benefit the development of local communities without losing control over their own resources.

Room for manoeuvre
Other speakers tried to define strategic room for manoeuvre to influence the current decision making on the European Union (EU) patent law on living material. According to Christine Noiville (University of Paris, France), patent specialists see patent law when applied to living material as neutral, ignoring any social economic impact. They see a patent merely as a right for an inventor in order to stimulate research into biotechnology. Ethical or ecological considerations, in their opinion, should be regarded by the legislator in the form of limitations or a ban on the use of the product. Noiville noticed a break from this history when for the first time a patent for a genetically engineered animal (cancer mouse) was applied for in the EU. This application was finally awarded, but not without taking into account new conditions. The decision on the patent application was not only made on a technical basis (such as being a novel invention with an industrial application), but it was also based on weighing the interest for mankind against the suffering of the animal and the risk it could pose for the environment.
To include social­political considerations in EU patent law seems to be restricted to patents on animals. However, according to Noiville, it would be very logical to extend the jurisprudence to plants and genetically modified micro­organisms which present greater environmental risks than animals. It is unclear what kind of ecological risks should be taken into consideration. Could the fast replacement of land races by more uniform varieties accelerated by certain biotechnologies form an argument to exclude particular biotechnologies or varieties from patenting? It is clear that the assessment of the impact on the environment could not be made by lawyers or economists but that expertise would be needed from other sources.
Regine Kollek (molecular biologist at Institute for Social Sciences, Hamburg, Germany) addressed the equivocal definition of genes and the unclear relationship between genes and characteristics they are said to encode. Similar genes behave distinctly in different organisms, while also the effect of genes in one organisms may change in a different environment. Individual genes could be important for the expression of a concrete characteristic of an organism but never fully control these expression. If genes are not acting independently, Kollek stated, this should question the legitimacy of patenting genes structures or the gene functions.

Commercial interest in human genes
The most provoking element of the discussion on biodiversity and patenting is the growing interest in the human genome. In recent years, two large projects, the Human Genome Diversity Project (HGDP) and the Human Genome Project (HGP), have started to gather genetic information from different groups of people, especially those who are in danger of extinction. Apart from these initiatives, the first patent claims on human genetic material are pending.
According to André Langaney (Ex­committee member of HGDP, University of Geneva, Switzerland), HGDP studies the diversity of mankind in order to answer the questions "who are we, where do we come from, and where are we going to?" As well as data to reconstruct human history, the project will provide information on genetic patterns of disease susceptibility among different groups. The project serves an academic interest of biological anthropologists, and should not be associated with the search for "genetic capital" among indigenous communities, according to Langaney. No such "genetic capital" exists because there is no use for patenting human genes, since the project proves that the genes found in groups of people are the same everywhere, although the frequency will differ.
This statement was challenged by Alan Goodman (Hampshire College, USA). He pointed out that the private US company Genentech markets a genetically­engineered form of human growth hormone, and that human genes are indeed of commercial interest. But Goodman was especially worried about the adverse effect of the exclusive attention for genetic information, isolated from contextual information, apparent in both HGDP and HGP. According to Goodman, genetic reductionism does not lead directly to the belief that humans are divisible into a finite number of types (races) and that individual biology and behaviour are explicable by these types. But, he continues, history has taught us "the extreme likelihood of such connections."

Pat Mooney (Rural Advancement Foundation International, Canada) closed the symposium with a passionate speech against the immoral patenting of life forms. New systems should be developed to support innovation in the 'life' or agricultural supply industry. Both at local and global level, public and private innovators, indigenous people and farmers should formulate new rules for these innovations.

Remaining questions
At the symposium, many questions remained unanswered. What is the strategic value of the openings presented by Noiville and Kollek to influence European patent law? Are the reverse developments based on existing cultural and biological diversity feasible options, and if so, how could they be stimulated? Are the static and dynamic concepts of biodiversity exclusive, or could they be complementary? If genes are behaving differently in different species and/or environments, as Kollek stated, what does this mean for biosafety aspects of genetically modified organisms? At the symposium, appropriation of genetic material was exclusively discussed within the legal framework of the North. Does this mean that the pressure on governments of developing countries to adopt intellectual property protection on plant material cannot be influenced? Although the GATT agreement includes the establishment of property protection on plant varieties, this need not necessarily be by patenting. 
Peter Commandeur

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