Eight Reasons Why Patents Should Not Be Extended
to Plants and Animals
||Busch, L. (1995), "Eight Reasons Why Patents Should Not
Be Extended to Plants and Animals." Biotechnology and Development Monitor,
No. 24, p. 24.
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
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
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
Lawrence Busch is Professor of Sociology at Michigan Sate University,
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