A ruling by Canada's Supreme Court that a company's patent on a gene covers the use of all products containing that gene may have reduced legal uncertainty about GM crops. But it has highlighted — and heightened — the political conflict over them.
Ever since scientists first developed the ability to give organisms new characteristics by inserting foreign genes into them, three issues have dominated discussion of whether a genetically modified (GM) organism could be called an 'invention', and therefore be subject to patent protection.
Two have essentially been seen as legal arguments. The first has been the question of whether living organisms could be patented at all, genetically modified or otherwise. For much of the biotechnology industry, this was resolved by the US Supreme Court in the early 1980s when, in a landmark decision, it ruled that an oil-spill cleaning bacterium developed by an engineer, Ananda Mohan Chakrabarty, working for the General Electric Corporation could be covered by a patent claim. The ruling was based largely on the judgement that there was nothing in the US Constitution that prevented such 'inventions' from being covered by patent legislation.
Two years ago, however, the issue was thrown open again by the equivalent body in neighbouring Canada, which refused to grant a patent on Harvard University's 'oncomouse' — a mouse genetically engineered for use in cancer research — on the grounds that such a patent would go beyond what was ethically, and hence legally, acceptable in Canada. The result is that there is no longer a clear international consensus on the issue.
The second aspect of GM patents has also found itself in front of Canada's Supreme Court. In this case, however, the court appeared to point in a different direction, namely to extending rather than restricting the scope of patents on DNA sequences and the organisms that contain them. In a decision reached ten days ago, it confirmed that any product that contained a patented component was itself covered by the provisions of that patent if its owner tried to sell it. And that this applied to a living organism that contained a gene that had been patented.
The latter case — which could prove an equally landmark ruling to the original Chakrabarty decision — centres on a case brought by the agribiotech multinational Monsanto against a Canadian farmer, Percy Schmeiser, who, the company argued, had been growing its patented canola seed without its consent.
The court's decision ten days ago to uphold the company's claim is being seen as the first time that a high court has ruled on the degree of control that a company can exercise on a farmer's use of its GM seeds and plants. And it is therefore not surprising that Monsanto's victory has focused the spotlight on the third dimension of the debate around GM patents, namely whether the current legal structure supporting such patents remains politically acceptable, given the extent to which it appears to operate primarily in the interests of large corporations.
Schmeiser defended himself against Monsanto on the basis that he had only used seeds that he had harvested himself, and that the GM seed must have come from plants that had propagated themselves from seeds blown in from neighbouring farms. Furthermore, as he did not himself use the herbicide Round-Up, to which the seeds were tolerant (allowing them to survive being sprayed), he was not benefiting from the 'invented' gene conferring the herbicide resistance.
But the company claimed — and the court agreed — that he had been deliberately avoiding the payment that Monsanto requires from any farmer who chooses to take and subsequently 'use' seed from its patented canola crops. Schmeiser was order to pay more than US$100,000 in costs and penalties, his only consolation being that the Supreme Court disagreed with a lower court's ruling that he had made money out of his action, and therefore overturned an order to pay his US$14,000 profit on the crop to the company.
As with the Chakrabarty ruling, the legal decision was a close one, with the judges finely split. Four out of the nine supported Schmeiser's case, in particular by referring to the earlier Canadian ruling that organisms as such (including plants) cannot be patented, and that Monsanto was therefore not permitted to claim royalties on seeds that Schmeiser — rather than the company — had produced.
They were outnumbered, however, by the five others, who focused on whether Schmeiser could be said to have 'used' the company's invention merely by selling it in a product (namely the canola) that he had produced. They concluded that he had, that he had not sought the company's permission (or paid the required royalties), that the earlier Supreme Court ruling was irrelevant (as Monsanto's patent had focused on the gene rather than the modified plant), and that Monsanto's case against Schmeiser was therefore legitimate.
The company has, predictably, welcomed the decision. A spokesman for Monsanto, for example, said that the ruling would give agricultural companies a clear legal framework to work within Canada, and that the court's message was that "Canada continues to be a very good place to invest for the benefit of the farmer". Schmeiser's supporters, in contrast, claim that they may have lost the battle, but not the war, and are determined to lobby the country's parliament for a change in its patent laws.
Opening up debate
They have a case, certainly, for opening up the political debate on GM patents. Although much of the opposition to GM crops around the world has focused on the potential health and environmental consequences, lurking close to the surface has always been uneasiness with the fact that the agribiotech industry is dominated by a few large multinational companies. And that the patent system as it currently operates provides the mechanism through which these companies can exert massive control over what the world's farmers can and cannot plant, and how much it costs them to do so.
Patents have an important role to play, both in promoting investment in the necessary research, and in ensuring that those who take on the risks of innovation are able to benefit appropriately from having done so. The problem lies in the way that the patent system is used. In the case of pharmaceuticals, many argue that the profits sought by patent-owning companies operating in developing countries are too high. In the case of GM crops, the issue is a different — but no less contentious — one, namely that the patent-owning seed companies are becoming too powerful.
The courts should not be expected to resolve such issues. Indeed, an easy resolution is unlikely to emerge. Rather it is important that individual countries address the political issues raised, and determine in a democratic manner how they should be addressed in national legislation. The implementation of international agreements on patent rights — such as the Trade Related aspects of Intellectual Property of the World Trade Organisation — should remain flexible enough to allow this debate to take place. It should also ensure that both the economic and political interests of poor farmers, who often see the world in a very different way to multinational seed producers, are adequately expressed. Too frequently they are not.