Patent a plant? Americans do, irking shamans
The shamans were unhappy. Querubin Queta Alvarado and Antonio Jacanamijoy Rosero, spiritual leaders of their Amazonian tribes, stood incongruously in the headquarters of the US Patent & Trademark Office wearing traditional garb - beads, feathers, and teeth. But under their arms were official protest documents prepared by their attorneys.
The shamans say the Patent Office has helped steal their most important and sacred cultural property, an Amazonian plant called ayahuasca. So in March they came to Washington to request that US authorities review their decision to award an American researcher the patent for the plant.
"Some indigenous people say the patenting of this plant is the equivalent of somebody in their group patenting the Christian cross," says David Rothschild of the Washington-based Coalition for Amazonian Peoples and their Environment. "It's also offensive to them that someone in the US is claiming the intellectual property of the knowledge of this plant, which they see as being theirs."
The ayahuasca case is just one in a series of international controversies triggered by the awarding of US patents on living matter - from naturally occurring plants and genetically engineered mice to the human cell line of an indigenous man living in Papua New Guinea.
America is unusually liberal in determining what is eligible for patent ownership. Many countries do not award patents on living things, except crop strains. But under US patent law almost anything that has been modified or manipulated by human invention is eligible for consideration - including microbes, plants, animals, even products created from human tissues, cells, or DNA. Supporters say such "life patents" are essential to encourage the development of new crop varieties, livestock, pharmaceuticals, and medical procedures.
But a number of interest groups oppose such patents on moral, ethical, or social grounds. Most argue that life patents effectively steal intellectual property from their rightful owners, or that the commodification of life - especially human genes and tissues - has disturbing implications that society is profoundly unprepared to tackle.
"Human genes evolved over hundreds of millions of years. They're shared property," says Jonathan King, a molecular biologist at the Massachusetts Institute of Technology in Cambridge. "For a company to claim a patent on a gene sequence is straight theft of the most profound kind."
But US companies commonly patent gene sequences, human cell lines, even entire, genetically modified organisms. Others have received patents for allegedly novel uses of naturally occurring plants, often after learning of their uses from people in developing countries.
Thomas Jefferson excluded living creatures when drafting the country's first patent laws. Under a 1930 congressional act, exceptions were made from seed and plant breeders, but patents on other life forms were not allowed. But in 1980, the Supreme Court voted to allow the patenting of a genetically modified bacterium.
"That decision says that any machine, manufacture, composition of matter, process, or improvement that involved the intervention of mankind ... was patent-eligible," says Stephen Kunin, deputy assistant commissioner for patent policy.
The Supreme Court identified only three exclusions: abstract ideas, laws of nature, and natural phenomena. While the court did not exclude patents on human beings, they are currently excluded under a 1981 Patent Office policy memorandum. "That's where we still stand today," Mr. Kunin says.
This broadening of life patents has resulted in several international controversies in which foreign nationals or their governments have questioned the validity of some US patents.
Ayahuasca is the most recent case and one of the more clear cut. Amazonian shamans were outraged to learn that the plant had become the intellectual property of an American researcher, Loren Miller, under a 1986 patent. How, the shamans argued, could a naturally occurring plant be "owned" by anyone, particularly someone living where it does not grow?
The shamans had a point. Under US law, natural plant varieties are in the public domain. Mr. Miller, who wanted to research the plant for its medicinal value, was awarded a patent for an allegedly altered strain of ayahuasca. But botanical experts say the patented plant is exactly the same as the natural variety. The shamans asked that the validity of the patent be reviewed on these grounds, and that request was recently approved.
Thousands in India rallied against another US patent involving turmeric, the popular spice. US researchers were granted exclusive rights to develop medicine from the spice based on traditional Indian knowledge. The Patent Office canceled the patent in 1997, after India presented evidence that the "novel" medical techniques had been discovered by Indians centuries ago.
India also has lodged official challenges to recent US patents on the active ingredient in the neem tree - used to control pests and as a natural toothpaste - and a modified strain of India's famous Basmati rice. Angry protests against the Basmati patent have occurred in Pakistan and Thailand as well.
"We were shocked that we'd become the whipping boy for what are really broad philosophical questions that governments must answer," says Richard Long, a vice president of Texas-based RiceTec, which used natural breeding techniques to create the new Basmati strain. "What is commonplace in patent law here is very foreign and frightening in other parts of the world," Mr. Long adds.
But nothing is more controversial than the patenting of human material. In 1983, the Hagahai - a small tribe in Papua New Guinea - made their first contact with the outside world. Soon after, scientists discovered their blood contained a virus they thought might lead to new leukemia treatments. To pursue this research, the US National Institutes of Health was awarded a patent in 1995 for the entire cell line developed from blood taken from a Hagahai man.
THE decision unleashed a firestorm of criticism. Papua New Guinea demanded an explanation from the US ambassador. Third-world nations denounced the move as "genetic imperialism." Stunned by the reaction, the NIH dropped its patent claim in 1996, although it was in full accordance with current US law.
"This is the most classic example of piracy," says Pat Mooney of Rural Advancement Foundation International, the Winnipeg, Manitoba-based group that exposed the patent.
While it's clear that the patent did not confer ownership of the person from which the sample came, there is considerable ambiguity as to how far a patent on a cell line extends, says Hank Greely, law professor at Stanford University. "Patents are written by lawyers to be as broad as possible," he says.
The Patent Office's Kunin says that moral and ethical issues surrounding biotechnology should be addressed through restrictions and regulations on science, not on intellectual property law.
(c) Copyright 1999. The Christian Science Publishing Society