Jasdeep Singh Bal is a J.D. candidate (2011) at Osgoode Hall and is taking the Patent Law course.
There is a disconnect between patent laws, which are reflective of Western Industrial and commercial theories, and Eastern philosophies. According to Scheper-Hughes and Lock, there are essentially three different ways in which a body is viewed, two of which are important to this discussion: The first is the highly individualized body, and the second is the body within society. Speaking of the first, Scheper-Hughes and Lock attribute Cartesian dualism—the idea that the mind and body are distinctively separated—to the “mechanistic conception” of the body that allowed biology to pursue a radically materialistic progression, whereby the importance of mind, or the individual’s place within society, is trivialized. It is out of this understanding, I argue, that Western conceptions of patent laws have taken hold, making it problematic for Eastern societies that place an emphasis on a less individualistic and mechanistic view of the body.
In India, for example, the trading of seeds between farmers was seen as a necessity for success. The view of the farmer as a member of a larger community, therefore, had social utility. They were not only sharing seeds but were also sharing knowledge. This was the practice for thousands of years before the introduction of genetically modified (GM) seeds. The threat of large multinational companies such as Monsanto asserting patents on seeds discouraged the practice of trading seeds. The view of the farmer within a community is being displaced by an individualistic world view. The ‘magic’ GM seeds are sold to farmers at exorbitant costs on the premise that these new seeds are vastly superior to the local seeds which farmers have traded amongst each other openly. When crops fail, which they often do, many farmers commit suicide because they see no way out of the debt incurred from buying pricey GM seeds.
A corollary issue worth considering is the effect on the genetic diversity of crops in the region. The important beneficial effect of seed trading is that it fosters genetic diversity of plant life in the region. The prevention of seed trading by Western patents on GM seeds is destructive to genetic diversity. Whereas before the farmer was in a healthy give-and-take relationship with the land and community, the farmer is now individualistic, soaking his lands in potentially harmful pesticides necessary for GM seeds to grow, decreasing the nutritional value within the soil, and stifling genetic diversity of crops within the region.
Western conceptions of patent laws, holding a mechanistic value to biology, enables further marginalization of the Third world, which is still suffering from the effects of imperialism. Companies are exploiting the genetic resources of the Third world to develop pharmaceutical or other products, and often rely on indigenous knowledge to do so. Countries under the GATT facilitate this exploitation as they feel increased pressure to implement US style patent systems. The Neem Tree in India, for example, has attracted patents by US companies for its antibacterial properties, known to virtually all Indians for many generations.
The first instance of the mechanistic view of biology, stemming from Cartesian Dualism, being incorporated into Western patent laws occurred with the United States Supreme Court Decision of Diamond v Chakrabarty, ushering in a new era for patents. The court ruled that a genetically altered strain of bacteria was patentable as it was not ‘naturally occurring’. In Canada, the Re Application of Abitibi Co. (1982) opened the possibility of patenting higher life forms. The Supreme Court of Canada decision in Harvard Mouse (2002), in a 5-4 split, held that the product claim (the genetically modified mouse and offspring) was not patentable, but the process claim (how to create the mouse using new genes) was patentable. Although the law has been hesitant to the outright patenting of life forms, especially higher life forms, the law nonetheless is moving in that direction. The dissenting opinion in Harvard Mouse (2002), did not agree with the majority decision that since Parliament did not legislate for the patenting of higher life forms they clearly did not intend for it to be patented at this point. The dissent argued that Parliament did not anticipate this issue, and so it should be left up to the courts to decide. In Moore v Regents of University of California (1990), the Court ruled that Mr. Moore was not entitled to the rights of his own spleen cells after they were removed. The University of California exploited the cells to produce valuable protein without the consent and knowledge of Mr. Moore.
The classic pro-patent argument is that it fosters innovation. When companies create plants that can help leech toxins out of the soil (phytoremediation), or microorganisms genetically altered to help clean up oil spills, it makes sense that those that created it be able to reap the rewards of their innovation. Indeed, the market for biotechnology is large. Why not alter a strain of bacteria to make it easier to clean up oil spills instead of creating machinery that may be less effective and more costly? However, activists argue that patents exploit genetic resources of the Third World, enabling corporations to assert monopolies. This drives prices of goods artificially high and out of reach of those who need it most, as well as having people pay royalties to wealthy nations for locally derived products (for more on this, click here), furthering the marginalization of susceptible people.
There is need for harmonization between patent laws with the world views of other societies, especially when Western patent theories are being transplanted there. While there is merit to the argument in support of protecting the rights of inventors, it should be recognized as being conceived from Western philosophy, and rooted in materialistic notions of the body, which may run perpendicular to the ways in which other societies operate. Failing to do so will result in a world where the patent world reduces life to simply being ‘gene-machines’ and those already marginalized by developed nations will continue to be shackled by the chains of biocolonialism.
In addition to the potential exploitation of the third world mentioned in this post, there are other potentially detrimental effects of the rigorous enforcement of patent rights in the area of biotechnology. Patenting in this field is highly contentious, as there are several important interests that need to be balanced. Patents offer financial incentive to researchers, which is arguably necessary to encourage development and innovation in the field, and as compensation for the efforts of researchers. On the other hand, it can be argued that the availability of patents on biological materials actually causes delays in research and development. There is also the potential for patent rights to be exploited, as patent holders can charge extremely high sums for the information. Rather than promoting innovation, it can have the effect of creating delays in research and scientific progress, as licenses must be issued before the information can be disseminated to others in the field. This can cause significant injustice when screening processes for certain diseases/genes are under patent protection. The added financial obstacle renders access to screening techniques for certain diseases unattainable to many in need of the technology. Additionally, enforcing monopolies may prevent more accurate testing from being developed: http://www.msnbc.msn.com/id/30719222/. Allowing individuals and companies to enforce patent rights in order to ensure that they receive the maximum amount of profit for their invention prevents the free flow of information that is necessary to promote progress, which is in the public interest.
Further, in the field of genetically engineered food, patents have the effect of preventing meaningful research from being conducted on the technology. While most research has found that genetically modified organisms are harmless to humans, other results have warranted further research. Researchers are barred from publishing results in peer reviewed journals due to end-user agreements. Results may only be published with the approval of the agritech companies. When research turns up undesirable results, publication is often blocked by the companies. Enforcing monopolies in this field has made it nearly impossible for truly independent research to be conducted on the potential health and environmental effects of the production and consumption of GE foods. I agree that current patent laws do not strike a balance between protecting the rights of inventors while recognizing the sanctity of life and respecting the interests of farmers, particularly in the third world and in cultures that value community over individual gain. Rather, it seems that corporate interests are the ones being protected and promoted by the current state of the law.
I agree that Western conceptions of industry and commerce have shaped patent laws in such a way that marginalizes Third World countries, particularly with respect to the protection of traditional knowledge such as the need tree, as mentioned by Jasdeep. However, it is worth noting that protection does exist for traditional knowledge in the context of intellectual property, though still quite limited in its use and application.
One form of protection is in the compilation of traditional knowledge databases as evidence of prior art. For example, the Traditional Knowledge Digital Library (TKDL) database is an attempt to codify traditional knowledge on Indian Systems of medicine. The Government of India provides access to the TKDL database to various national patent offices.
See also the Traditional Ecological Knowledge Prior Art Database: http://ip.aaas.org/tekindex.nsf
Another form of protection is to provide legal rights over traditional knowledge. Local or indigenous communities ‘ rights are recognized in national constitutions and laws. In particular, some countries in Latin America have recognized a sui generis system of collective rights in the intellectual property of indigenous and local communities.
At the international stage, the Convention of Biological Diversity (CBD) has developed measures for the use and protection of traditional knowledge in relation to the conservation and sustainable use of biodiversity. In particular, Article 8(j) of the CBD provides that each state shall respect and preserve indigenous knowledge and practices relevant for the conservation and sustainable use for biological diversity. It also requires the approval and involvement of the indigenous and local communities that hold such knowledge.
Furthermore, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established as an international forum for debate and dialogue concerning the interplay between intellectual property, and traditional knowledge, genetic resources, and traditional cultural expressions. It has developed of a set of draft provisions for the protection of traditional knowledge against misappropriation and misuse.
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