Biotechnology industry interests normally call for an extension of patents to plants and animals as a requirement to stimulate investments in biotechnological research, and to insure the wide distribution of the benefits from such research. Lawrence Busch, on the other hand questions whether such an extension will serve this purpose. If intellectual property rights must be extended to living organisms, he argues, another legal form would be needed.

The legal theory behind patent law is quite simple. Patents are contracts between the state and the inventor in which the inventor is granted a monopoly for a limited period of time in return for full disclosure of the invention. In principle, both the inventor and the public benefit from this. But evidence suggests that an extension of patent law to higher organisms is not likely to serve the public good for several reasons:

• There is virtually no evidence that patents actually stimulate invention. Studies, such as Leonard Reich's The Making of American Industrial Research (Cambridge, 1985) suggest that patents are used to block other firms from entry into the market. For example, in part as a result of the extension of plant variety protection and the willingness of US courts to extend utility patents to organisms, the number of independent seed companies worldwide has declined markedly over the last several decades. Large petrochemical and pharmaceutical giants have extended their corporate reach in the seed market. Such oligopolies often slow down rather than speed up the process of invention.
• Patent law was designed with mechanical and chemical inventions in mind. In those areas the distinction between discovery and invention is clear: tractors and corn flakes are clearly inventions. They are nowhere to be found in nature. In contrast, biological "inventions" often lack such an inventive step. They involve only the recombination in novel ways of genetic material that already exists.
• The description provided with biotechnology patents is quite useless to someone who does not have access to the genetic material it describes. As noted above, patent law is supposed to make the knowledge about how to create an invention public. But this is essentially impossible in the area of biotechnology as the ability to create new genes is still a dream.
• While most plant varieties are replaced after just a few years, the duration of protection of utility patents generally is about 20 years. Utility patents prohibit research using patented materials. Thus, they may slow down invention or alternatively, create enormously complex cross­licensing arrangements, whereby a given plant or animal variety might be covered by dozens of patents. Granting a monopoly over such an extended period of time prohibits others from using the knowledge covered by the patent to develop still better varieties.
• The basic principles of biotechnology and genetic engineering were developed in the public sector. Without huge public investments in molecular biology, the biotechnology industry could never have developed at all. It has made, and will continue to make, only marginal improvements over what was done in the public sector. In a certain sense then, one can argue that patents for biotechnology inventions, require that the public pay twice for the necessary research. Is this fair and just?
• There is no particular reason to privatize public goods. Public plant breeding has succeeded in raising yields. Moreover, public sector breeding at least in principle, is accountable to public concerns. Public breeding has managed to cover the range of agricultural commodities and to develop cultivars appropriate to a wide range of agroecological zones. Private breeding, as is evident from looking at plant variety protection certificates issued, will tend to focus on the commodities and areas in which the most profit can be made.
• The legal requirements of utility patents demand uniformity. Such uniformity is not desired in the field, since it may well increase the susceptibility of plants and animals to pests and diseases. Development of organisms that are more genetically diverse, but have similar characteristics of interest to users, is actively discouraged.
• The extension of patent protection to plants and animals neglects the fact that not all the nations of the world have equal ability to make use of the patent system. In point of fact, only a handful of developing nations have the public or private capacity to enter into such competition. To do so demands both a significant public sector research base and significant private capital to develop patentable materials, to file patent applications and to protect those patents against infringement. Indeed, even in the wealthy nations of the world, small companies often find that their patent rights are unenforceable in the courts simply due to the wealth of their adversaries.

If we must extend intellectual property rights to living organisms, then we need a legal form designed specifically for them. Such a system might resemble the current plant variety protection system, although it too suffers from an insistence on distinctness, uniformity, and homogeneity, which are qualities that may be of little value outside the legal arena. A better system would focus on agronomic characteristics, food quality, and nutritional value, and permit the unrestricted use of protected material in research.
L. Busch

Lawrence Busch is Professor of Sociology at Michigan Sate University, USA