No Safe Harbor: Privatizing Life

KEMBREW MCLEOD

Because of a landmark Supreme Court case and congressional legislation, 1980 was a pivotal year for genetic research. In the Diamond v. Chakrabarty decision, a five-to-four majority ruled that a living, genetically altered microorganism could be patented under U.S. law. Previous to this ruling, it was the policy of the U.S. Patent and Trademark Office (PTO) that living organisms - in the case of Diamond v. Chakrabarty, a bacterium that helped clean oil spills - could not be patented. But the Supreme Court ruled otherwise, stating that “anything under the sun that is made by the hand of man” is patentable subject matter. That same year, Congress passed the Bayh-Dole Act to encourage the commercialization of inventions produced by universities and other recipients of federal funding. An influx of private money poured into university science departments, and since the act’s passing, the private funding of university biomedical research has increased by a factor of 20.

This growth in subsidies provided the legal justification for researchers to exploit human genes. And when I use the word “exploit,” I’m not using it in an ideological way - I'm simply using the terminology of a patent lawyer. During an interview with a New York Times reporter, Todd Dickinson, the former U.S. Patent and Trademark Office’s commissioner, took exception to the idea that patents allow a “government sponsored monopoly,” a phrase he found imprecise. Instead, Commissioner Dickinson corrected the reporter, saying candidly and without irony, “We like to say ‘right to exploit.’ ”Today, private pharmaceutical companies (many of which are partnered with universities) are engaged in a manic - maniacal, even - race to patent every imaginable human gene, protein, and cell line that might be profitable.

The BRCA-1 and BRCA-2 genes are linked to breast cancer and are owned by Myriad Genetics, whose literature reports, “Women with a BRCA mutation have a 33 to 50 percent risk of developing cancer by age 50 and a 56 to 87 percent risk by age 70.”Myriad has a monopoly right over the use of the gene in diagnostic tests or therapies, which means that every time a woman is tested to find out if she carries those mutated genes, a hefty royalty has to be paid to Myriad. Also, if a researcher discovers a therapy that prevents cancerous mutations in these genes, he or she is obligated under the law to secure a license from Myriad, and the company has used its patent to block research on the gene. This is one of the ways that these kinds of gene patents contribute to the skyrocketing costs of drugs and medical care in the United States and throughout the world.

Helena Chaye, like many I’ve spoken with in the business of drugs and science, feels uncomfortable about these kinds of situations. As the director of Business Development at the biotech corporation MediGene, she secures and sells gene patent licenses for the company. Chaye finds herself in an uneasy position. She has both a Ph.D. in molecular genetics and a degree in law, and is intimately familiar with both areas. “From a private company’s perspective,” she tells me, “you want everything to be protected. You want the ability to block other people, and you want the ability to monopolize a certain sector or a certain product and block others from entering, even though you may not be the one [who’s] actually developing it.” For many commercial entities, it simply makes no business sense to put anything in the public domain.

“I personally don’t believe in that,” Chaye says. “From what I do for a living, it’s a struggle, philosophically, that I’m having to patent everything.” She continues: “If genetic sequencing was publicly available for diagnostics, for example, you wouldn’t have to go through Myriad and pay four thousand dollars for a breast cancer test. If that was available to other parties, then you could have somebody else develop it at a much cheaper rate and be available for everyone.” She pauses. “I mean, the flip side of that is they say, ‘Well, we’re not going to be able to develop something so expensive unless there’s some sort of monopoly that protects us in the future.’ But I think there’s a reasonable level at which certain things should be protected, and certain things should be left to the public domain.”

My favorite patent request was submitted by a British waitress and poet who protested the gobbling up of the genetic commons by filing patent application GB0000180.0. She wanted to patent herself.

“It has taken 30 years of hard labor for me to discover and invent myself,” Donna MacLean drily wrote in the application, “and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new. I have led a private existence and I have not made the invention of myself public.” MacLean added, “I am not obvious.” The provocateur poet didn’t receive her patent, but she made her point.

PATENTS AS STUMBLING BLOCKS

While many are still happily riding the moneymaking bandwagon, there are a growing number of scientists, medical researchers, and even companies that believe certain gene patents can inhibit research. The chief scientific officer at Bristol-Myers Squibb, Peter Ringrose - hardly a radical anti-capitalist Luddite - said that there were “more than fifty proteins possibly involved in cancer that the company was not working on because the patent holders either would not allow it or were demanding unreasonable royalties.” Dr. Gareth Evans, a consultant in medical genetics, also believes that the economic value of genetic patents make research more secretive and restrictive, and therefore lessens the chances of scientists finding cures.

The hoarding of these kinds of patents threatens to create a “tragedy of the anti-commons,” as Rebecca Eisenberg, a National Institutes of Health-affiliated law professor at the University of Michigan, calls it. The phrase “tragedy of the commons” was coined by Garrett Hardin in his classic essay of the same name, and its primary argument goes like this: If anyone can use common property - a pasture where farm animals can freely graze, for instance - then it can be overused and trashed. While this can happen to physical resources, a patented gene won’t suffer the same fate, but as Eisenberg points out by inverting the phrase, tragedies do occur from fencing off the genetic commons. Yes, it’s true that patent protection provides the financial incentive for companies to invest in research and development, which, in turn, generates many useful drugs and inventions. Patents aren’t inherently bad, but Eisenberg argues that certain patents can be problematic when the protected materials resemble a discovery, rather than an invention.

This kind of patent ownership creates bureaucratic stumbling blocks and economic disincentives that can dissuade laboratories from dealing with certain genes. This was the case with hemochromatosis, a hereditary condition that can cause liver or heart failure (the gene that carries the disorder is found in one in ten people). In 1999 two companies were fighting over the ownership rights of the patented gene connected to hemochromatosis. This created confusion over who owned the patent and to whom medical laboratories should pay licensing fees, helping to shut down research on DNA tests that screened for the condition. Five labs halted testing for hemochromatosis, and twenty-one others decided not to offer the test at all.[1]

Professor Eisenberg argues that the existence of a genetic commons speeds efficiency in medical research because it eliminates the need to track down and negotiate with numerous patent owners.

This point was highlighted in 1999 when ten of the world’s largest drug companies created an alliance with five of the leading gene laboratories. The alliance invested in a two-year plan to uncover and publish three hundred thousand common genetic variations to prevent upstart biotechnology companies from patenting and locking up important genetic information. The companies (including Bayer AG and Bristol-Myers Squibb) wanted the data released into the public domain to ensure that genetic information could be freely accessed and used for research. Its mission undermined the assertion that a genetic commons inevitably leads to commercial suicide and the end of research incentives.[2]

What’s most troubling about thousands of DNA sequences being owned by a handful of companies is the fact that genes are deeply interrelated. For instance, there is no single gene that causes Alzheimer’s disease, which instead results from a variety of environ-mental factors and interactions with other genes. Scientists have mapped much of the human genome, figuring out that there are roughly one hundred thousand pieces of a genetic jigsaw puzzle. But in order to effectively fight diseases with genetic technologies, researchers have to learn how each privately owned gene connects and reacts with the ones around it. Imagine trying to put together a puzzle if you had to buy a random assortment of jigsaw pieces from dozens of companies. You might get frustrated, even give up. When you have to secure multiple licenses from several companies just to begin research, it is all the more difficult for scientists to efficiently and affordably do their job.

“It’s a really big problem if you have to sign lots of agreements,” Eisenberg told New Scientist. “Licenses and material transfer agreements with companies are taking longer to negotiate, so it may take weeks or months.” Similarly, Jeffrey Kahn, director of the University of Minnesota’s Center for Bioethics, cautioned that high licensing fees can hold medical progress hostage. “If you’re a start-up company, you need to have those licenses bagged,” MediGene’s Helena Chaye tells me. “You need them in your back pocket to go and raise money or to entice investors to put more money into it because you’ve got new licensed technologies.” Not having those licenses, she says, “could definitely hinder your operations.”And if you think that many of these companies aren’t aggressively guarding their genes, just listen to Human Genome Sciences CEO William A. Haseltine, who openly stated: “Any company that wants to be in the business of using genes, proteins or antibodies as drugs has a very high probability of running afoul of our patents. From a commercial point of view, they are severely constrained - and far more than they realize.”

Geneticist John Sulston argues in his book, The Common Thread that it seems unlikely “that patent laws combined with untrammeled market forces are going to lead to a resolution that is in the best interests of further research, or of human health and well being.” Advocates of privatization argue that having a commons that anyone can freely draw from will mean the end of creativity and innovation, but the opposite is often true. The way patent law is applied in genetics can limit researchers’ choices, which means the scientific imagination becomes routinized and stifled. There’s little room for the kinds of visionary ideas and accidental discoveries that evolve into real breakthroughs. An argument for the commons - whether it’s the genetic commons or a folk-song commons - is an argument for more creative elbow room.[3] But because of our blind faith in privatization, freedom of expression® has been limited artistically, socially, and scientifically.

SEEDS = INFORMATION

I live in Iowa, and I am surrounded by corn, pork, pickup trucks, and, from what I hear, meth labs. Over the past few years, I’ve been inundated by plenty of weird and wonderful stories about farming and rural living. However, one of the most unsettling, science fiction–sounding scenarios I’ve come across is the “Technology Protection System,” or “terminator technology,” as it is known in the press. This technology enables seed companies to genetically alter their patented seeds so that crops become sterile after one planting, turning off life like a light switch. It’s a way of preventing farmers from retaining seeds from the previous year’s crop and replanting them.

Saving and replanting seeds is something we humans have been doing since we stopped being nomadic creatures, but the practice is now illegal with seeds that are patented. The terminator seeds were developed by the U.S.-based Delta and Pine Land, whose president trumpeted, “We expect the new technology to have global implications.” Delta and Pine Land claimed that the terminator seed would be marketed primarily in developing countries to prevent farmers from saving, trading, and/or replanting seeds that are sold by U.S. corporations. Interestingly, the seed industry experienced many aspects of the Napster file-sharing controversy a few years before it hit the music industry.

While there are obvious differences, there are also striking similarities. MP3 music files circulate on the Internet because someone had to purchase a CD, which was then inserted into a computer and “ripped” into digital files. These files can then be exactly duplicated, and copies are made of these copies, then shared. This is also true of privately owned seeds, though the earth (rather than a computer) “reaps” this information without permission. These copied seeds can then be given to other farmers through informal trading systems, delivering them from person to person, a sort of rural peer-to-peer file-sharing network. Even though the seeds are patented, much like music is copyrighted, this can’t stop someone from creating a facsimile of someone else’s intellectual property. This is why the terminator technology was invented.

Sterile seeds may be an inconvenience for American farmers who, for various reasons - including being riddled with debt - want to continue saving seeds. But they may prove devastating for their poorer counterparts in Third World countries who rely on subsistence farming. U.S. Department of Agriculture (USDA) spokesperson Willard Phelps stated that the goal of the terminator technology is “to increase the value of proprietary seed owned by U.S. seed companies and to open new markets in second and Third World countries.” The primary creator of the terminator seed, Melvin J. Oliver, made clear his invention’s purpose to New Scientist: “Our system is a way of self-policing the unauthorized use of American technology,” he asserted, comparing it to copy-protection technologies that prevent the duplication of music. And we wonder why so much of the world hates us.

In mid-1998 Monsanto made an attempt to purchase terminator seed–patent owner Delta and Pine Land. However, this technology met with heated worldwide protests that targeted Monsanto as the next Great Satan, and in early 1999 the company stepped back in “recognition that we need some level of public acceptance to do our business.” Although Monsanto backed out of the merger, Delta and Pine Land, which still holds the terminator-seed patent with the USDA, has continued to develop the technology. Just as in the movies, the Terminator lived on. Delta and Pine Land official Harry Collins stated in January 2000, “We’ve continued right on with work on the Technology Protection System. We never really slowed down. We're on target, moving ahead to commercialize it. We never really backed off.” Since then, more terminator-technology patents have been awarded.

Four-fifths of the sixteen hundred patents issued for genetically modified crops are owned by just thirteen companies, and some of the most significant patents belong to Monsanto. The St. Louis–based operation was founded in 1901 as a chemical company, and it gained notoriety in the 1970s because it was responsible for creating Agent Orange. This chemical compound was used by the military to clear jungles in Vietnam, which led to illness and death in thousands, and the company has also been implicated in several cases of employee and residential contamination. A Monsanto production plant contaminated the Missouri town of Times Beach so much that it had to be evacuated in 1982, and in 2002 Monsanto lost a case against lawyers representing a small Alabama town that had been poisoned as well.[4]

By the mid-1990s Monsanto moved much of its chemical operations to biotechnology, and it is now a global leader in transgenic crops. The contract for Monsanto’s Roundup Ready soybeans allows the company to search a customer’s farmland for signs of saved seeds, and, to nab offenders, the company can track purchase records and check with seed dealers. Among other things, the company has hired Pinkerton detectives - the same private police force hired by the Rockefellers to murderously bust unions in the 1920s - to investigate tips on seed saving. In addition, the company created and advertised the existence of hotlines for neighbors to report farmers who save seeds. “Dial 1–800–ROUNDUP,” said a Monsanto ad. “Tell the rep that you want to report some potential seed law violations or other information. It is important to use ‘land lines’ rather than cellular phones due to the number of people who scan cellular calls.”[5]

Monsanto also developed a kit that determines whether or not a plant was derived from patented seeds by using a principle similar to a pregnancy test, but applied to leaves. Scott Good was one of the many farmers who dealt with the wrath of Monsanto when he saved his seeds and replanted the company’s intellectual property. “They showed up at my door at six o’clock in the morning. They flipped a badge,” said Scott of Monsanto’s agents. “They acted like the FBI. I was scared.” Farmers who infringe on Monsanto’s patents have been fined hundreds of thousands of dollars, and some face bankruptcy. Much like other large seed companies, Monsanto offers incentives for seed distributors to carry their patented seeds rather than public-domain seeds.

A farmer’s choice to plant public-domain seeds becomes increasingly difficult or impossible when near-monopolies exist within the agribusiness industries. Factory farming has flooded the market with low-priced crops, which forces farmers to purchase the patented, high-yield seeds or go out of business. University of Indiana seed geneticist Martha Crouch commented to Science magazine, “Free choice is a nice idea, but it doesn’t seem to operate in the real world.” Although critics have blasted the existence of these so-called Frankenfoods, we should keep in mind that farmers throughout history have manipulated the genetic makeup of crops by selecting for certain favorable traits. Also, these genetically modified crops often grow in more abundant quantities, need less labor, and sometimes require fewer chemical pesticides or herbicides. In other words, there are reasons why North American farmers plant these seeds.

One of the trade-offs, however, is that these patented crops are also uniform in their genetic makeup. This is a problem because when we rely on fewer varieties of food, we increase our chances of exposing ourselves to major food shortages. For instance, the biological cause of the Irish Potato Famine in the mid-1800s was rooted in a reliance on two major varieties of potatoes. The Phytophthorainfestans fungus precipitated the destruction of Ireland’s primary food staple for five years, spreading to the Highlands of Scotland and elsewhere. Although the same blight affected the Andes, because South American farmers preserved hundreds of varieties of potatoes, the effects of the fungus were minimal. In fact, the only reason the Europeans could restock their food supply was that they could draw on varieties of potatoes from the Andean region.[6]

The spread of uniform, patented seeds has accelerated the loss of thousands of varieties of crops. Today, 97 percent of the vegetable varieties sold by commercial seed houses in the United States at the beginning of the century are now extinct, and 86 percent of the fruit varieties have been lost. These numbers are actually quite conservative because there were surely more varieties that weren’t collected in the nineteenth century. Over the twentieth century the varieties of cabbage dropped from 544 to 20; carrots from 287 to 21; cauliflower from 158 to 9; apples from 7,089 to 878. The list goes on. In sum, roughly 75 percent of the genetic diversity of the world’s twenty most important food crops has been lost forever. Because biodiversity is a key factor in the ability of plants to adapt to changing conditions, and humans’ ability to do the same, reduced biodiversity seriously threatens ecological support systems.[7]

Despite skepticism from Europe, the planting of altered (and patented) soybeans, corn, potatoes, and canola in the United States and Canada has exploded, and the market for such crops is expected to grow to as much as $500 billion in the next few decades. The dramatic rise in the growing of patented crops in North America will likely be followed by the same expansion in other countries throughout the world - one way or the other. It’s a biological fact that, once the pollen from genetically modified crops travels through the air, it can pollinate nongenetically modified crops. This invasive pollination has happened to many organic farmers, such as Laura Krouse, based in Iowa. Because of the presence of the Bt gene in her corn, Krouse’s crop can no longer be certified as organic, and she lost half her business in the process.

Why can’t these farmers prevent this contamination? The answer, my friend, is blowing in the wind. “I don’t know if there’s room for a business like mine anymore,” said Krouse. “Biologically, it doesn’t seem like it’s going to be possible because of this sea of genetically engineered pollen that I live in, over which I have no control.”[8] In 1998 Monsanto sued Canadian farmer Percy Schmeiser after the company discovered its patented canola plants growing on his property. The seventy-three-year-old Schmeiser argued that he shouldn’t have to pay Monsanto a licensing fee because the pollen had blown onto his property from neighboring farms. Although Monsanto said this might be the case - in fact, the company acknowledged that Schmeiser never placed an order for its Roundup Ready canola - he was still infringing on their patent.

In a narrow 5-4 decision, Canada’s Supreme Court ruled in favor of Monsanto in 2004, stating that it wasn’t concerned with “blow by” dissemination of patented plants. It simply determined that the farmer “actively cultivated” Monsanto’s property. These patented seeds have also traveled south because the North American Free Trade Agreement (NAFTA) allows five million tons of corn to be sold in Mexico. Many residents of the country, and the Mexican government itself, are up in arms over what they see as an unwelcome invasion of their farmlands. But Dr. Michael Phillips, an executive director at the Biotechnology Industry Organization (BIO), isn’t very sympathetic. “If you’re the government of Mexico, hopefully you’ve learned a lesson here,” he bluntly told NOW with Bill Moyers. The lesson? “It’s very difficult to keep a new technology from, you know, entering your borders - particularly in a biological system.”

GLOBALIZATION AND ITS DISCONTENTS

Much of the developing world - primarily rain-forest countries - is loaded with what some gene hunters refer to as “green gold.” This refers to medically useful plant materials that can yield massive profits. However, identifying a valuable DNA sequence is a very difficult task, like finding a needle in a mountainous biological haystack. Scientists working for Western companies get around this problem by relying on tribal shamans and medicine men to point them to plants that are medically useful. Using the knowledge developed by indigenous people in developing countries increases by 400-fold a scientist’s ability to locate the plants that have specific medicinal uses. In another estimate, by consulting with the local communities, bioprospectors can increase the success ratio from one in ten thousand samples to one in two in their quest to find active ingredients that can be used in medicines.

For instance, using an active ingredient extracted from an indigenous plant in northeastern Brazil, the U.S.–based MGI Pharma developed a drug to treat symptoms of xerostomia, or “dry-mouth syndrome.” The drug’s development capitalized on the local knowledge about the properties of the jaborandi plant, which literally means - I love this -“slobber-mouth plant.” Knowledge about the plant’s properties had been passed down for generations, but the company did not compensate the native Brazilians in any way. Nor did MGI Pharma have to, even though it was the local knowledge that led the U.S. researchers to the drug discovery in the first place.[9]

Over the centuries, indigenous communities have significantly contributed to the diversity and cultivation of our most basic and important crops. The reason why we can purchase blue corn tortilla chips in stores is because of the centuries of care Mexican farmers gave to cultivating varieties of blue corn (as well as yellow, white, red, speckled, and hundreds of other varieties). This cultivation is a form of labor; that this corn still exists is no mere accident. However, only the knowledge developed in scientific laboratories is protected as patented “property” while the traditional systems are open to plundering because they are communally maintained. This illustrates the double-edged nature of “the commons,” a reason why this concept shouldn’t be blindly celebrated in all situations.

Under the global patent system, intellectual property can only be produced by people in white lab coats employed by companies with huge amounts of capital at their disposal. The time and labor and collective achievements of indigenous farmers are rendered worthless, devalued as being merely “nature.” These kinds of bioprospecting patents - or, as globalization critic Vandana Shiva calls them, biopiracy patents - are built on the fiction of individualistic scientific innovation. This false premise ignores the collective nature of knowledge and denies communities patent protection.[10]

It would be as if someone came along and copyrighted the stories in the Bible. The Old Testament’s narratives were passed down from generation to generation through the oral tradition, preserved by hundreds and thousands of years of active storytelling. Those who set the stories into print certainly had a strong editorial hand, crafting the sentences and ordering the stories in unique ways. But there are still strong echoes of that oral tradition: the use of repetition, mnemonics, formula, and other devices common to oral folk narratives. The written version of the Old Testament simply could not exist without the effort of the communities who passed the stories on. The same is true of useful plants in Third World countries.

Western scientists would have never “discovered” these plants if not for the cultivative labor of indigenous communities over hundreds and thousands of years. Unfortunately, this is not an argument that makes sense in most established theories of economics - so, to paraphrase Woody Guthrie, the poor people lose again. The U.N.’s 1999 Human Development Report pointed out that more than half of the most frequently prescribed drugs throughout the world have been derived from plants, plant genes, or plant extracts from developing countries. These drugs are a standard part of the treatment of lymphatic cancer, glaucoma, leukemia, and various heart conditions, and they account for billions in annual sales. According to the United Nations Development Project study, developing countries annually lose $5 billion in unpaid royalties from drugs developed from medicinal plants. The United States sees it differently. It calculates that developing countries owe its pharmaceutical companies $2.5 billion for violating their medical patents.[11]

The case of the yellow Mexican bean patent is symbolic of how patents can enable economic colonialism, where resources are drained from developing countries. In the early 1990s, bioprospector Larry Proctor bought a bag of dry beans in Mexico and proceeded to remove the yellow varieties, allowing them to pollinate.

After he had a “uniform and stable population” of yellow beans, his company, POD-NERS, exercised its legal right of monopoly by suing two companies that imported the yellow Mexican beans. The president of Tutuli Produce, Rebecca Gilliland, stated: “In the beginning, I thought it was a joke. How could [Proctor] invent something that Mexicans have been growing for centuries?” POD-NERS demanded a royalty of six cents per pound on the import of these yellow beans, which prompted U.S. customs officials to inspect shipments and take samples of Mexican beans at the border, at an additional cost to Gilliland’s company.

Her company lost customers, as did other companies, which meant that twenty-two thousand Mexican farmers lost 90 percent of their income. The Mexican government challenged the U.S. patent on this bean variety, but the process would be long and costly, running at least two hundred thousand dollars in legal fees. In the meantime, Proctor remained defiant, filing lawsuits against sixteen small bean-seed companies and farmers in Colorado, and he amended the original patent with forty-three new claims. Poorer countries typically don’t have the resources to battle these types of patents, especially when there are more pressing domestic concerns such as clean-water availability and health emergencies.[12] This lack of means to challenge bioprospectors is a real concern for countries targeted by patent-happy multinationals. It’s a problem because the economies of some African countries rely on only one export, and others, on only four or five.

These exports are essentially raw biological materials, and they make up roughly 40 percent of all the world’s processing and production. But once corporate biotechnology reduces active ingredients found in developing countries to their molecular components, the commodity can be manufactured rather than grown. Western multinationals hold a vast amount of patents on naturally occur-ring biological materials found in the Southern Hemisphere. These companies own 79 percent of all utility patents on plants; Northern universities and research institutions control 14 percent; and parties in Third World countries have almost no holdings. In Mexico, for example, in 1996 only 389 patent applications came from Mexican residents, while over 30,000 came from foreign residents. In this way, intellectual-property laws help to exacerbate the unequal distribution of wealth among rich and poor nations.[13]

Although patent law carries with it a Western bias, that doesn’t mean the future is a bleak, foregone conclusion for developing countries. In recent years, these nations and their allies within nongovernmental organizations have lobbied strongly to better protect the resources of countries rich in traditional knowledge and biodiversity. For instance, the World Intellectual Property Organization (WIPO) convened the “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore” -which met seven times between 2000 and 2004. The committee’s goal is manifold, but with regard to genetic resources it aims to encourage “benefit sharing” agreements between companies and countries rich in valuable biological material.[14]

An example of this is a 1991 deal linked between the pharmaceutical company Merck and the Costa Rican nonprofit Instituto Nacional de Biodiversidad (INBio). The agreement held the potential for Costa Rica to earn more than $100 million annually, money generated from INBio’s 10,000 collected samples of biological material. Although INBio signed more than ten similar contracts with other companies, it should be noted that these kinds of agreements are entirely voluntary and continue to be rare. In fact, Merck ended its association with INBio in 1999, and no royalties had been earned as of 2004. Lorena Guevara, the manager of bioprospecting at INBio, told me that negotiations with companies over the terms of benefit sharing are quite difficult. Still, Guevara remains optimistic,even in the face of forces that are much more powerful than the nonprofit for which she works - or, for that matter, Costa Rica itself.

North American and European countries, and particularly the United States, have led an unrelenting battle to force developing countries to adopt acceptable (to them) intellectual-property systems.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been an instrumental tool that forces member countries of the World Trade Organization (WTO) to adopt standardized intellectual-property laws. The general public in the First and Third World had no say in writing TRIPS. A senior U.S. trade negotiator remarked that, “probably less than fifty people were responsible for TRIPS.”[15] TRIPS forces developing countries to adopt intellectual-property laws that often run counter to their national interests, and if they don’t comply, they’re threatened with economic blackmail in the form of trade retaliations.

Strengthened intellectual-property laws in developing countries decreases the ability of local communities to gain access to technological information (through reverse engineering and other imitative methods). This makes technological catching-up all the more difficult. In this brave new privatized world, the only way to have market power is to innovate. But the only way to innovate is to have lots of capital to invest in the first place, and developing countries only account for 6 percent of global research and development expenditures. As poor nations strengthen their intellectual-property regimes, their markets increasingly are dominated by imported goods, because their local industries can’t compete.

The WTO acts as a policing mechanism that allows countries to bring “unfair competition” charges and other actions against offending countries. For instance, the Bush 2.0 administration has been under pressure from the biotech industry to bring charges against the European Union for its ban against genetically modified food. In a letter to Bush signed by virtually every agribusiness and biotech firm, it claimed that the ban stigmatized biotechnology and “may be negatively affecting the attitudes and actions of other countries.” As if other countries should not dare form their own opinions and policies.

For years, the United States opposed in WTO courts the waiving of patents in countries that have been overwhelmed by AIDS and other deadly diseases, making it illegal for those countries to import generic versions of drugs at a fraction of the cost. Economic studies of Taiwan, China, and India have shown that when patent laws are strengthened, drug prices go up because these countries can no longer manufacture generic drugs. This pattern has been repeated numerous times in poorer countries, where price increases can be devastating. During the 1990s, the Brazilian government was proactive in dealing with AIDS, allowing local pharmaceutical manufacturers to produce low-cost generic HIV therapies. It wrote its patent laws to allow for what’s called compulsory licensing, which legally compels owners to license their patents at a rate regulated by the government.

This approach allowed Brazilian manufacturers to produce Nevirapine - which helps prevent mother-to-child HIV transmission - for an affordable amount. It cost $0.59 U.S. dollars a day to treat each victim, which resulted in a 50 percent drop in AIDS related mortality between 1996 and 1999. As a reward for this achievement, the United States took Brazil to the WTO dispute panel to force the country to undo its liberal patent laws.[16] “The power of the rich countries and of the transnational corporations,” argued John Sulston, “was being used in a bullying and inequitable fashion to achieve ends that benefit them rather than mankind as a whole.”After years of worldwide pressure, the United States granted concessions in the WTO that were largely meaningless, like a provision that allowed countries to manufacture lifesaving drugs with-out penalty. However, most of these African countries had no such pharmaceutical production base, making it impossible for them to legally acquire the drugs.

Years dragged on, millions upon millions died until, in 2001, the United States agreed on a proposal that allows countries to import manufactured generic drugs. But under pressure from the pharmaceutical industry, the Bush 2.0 administration quietly changed its position and sent its trade representative to the WTO to kill the proposal. Much of the world reacted with rage to this shift, and finally in 2003 the United States signed on to an agreement that technically allowed countries with no manufacturing base to import cheap lifesaving drugs. I use the word “technically” because the agreement contains so much red tape that it severely limits the amount of supplies it can import. “Today’s deal was designed to offer comfort to the U.S. and the Western pharmaceutical industry,” said Ellen Hoen of the medical-aid group Doctors Without Borders. She told the Associated Press, “Unfortunately it offers little comfort for poor patients. Global patent rules will continue to drive up the price of medicines.”

I only hope that she is wrong, though given the WTO’s and the pharmaceutical industry’s track record on this issue, I have little faith. The kinds of constraints intellectual-property laws impose on culture may be bad for music and creativity, but in the case of drug patents it’s literally a life-and-death matter. Patent policy is as much a moral issue as it is an economic one, solid proof that property rights trump human rights nine times out of ten. Yes, I realize that these pharmaceutical companies invest millions of dollars in research and development, but there are times when profits alone shouldn’t guide us and empathy and compassion should take over. However, we’re living in a time when, increasingly, money is the only thing that matters.

I’m not claiming that all patents are bad things, because it’s demonstrable that they can encourage investment in the development of products. However, I am arguing for two things. First, there should be some flexibility in the way patent protections are enforced, especially in situations such as the worldwide AIDS crisis. It simply should not have taken ten years for the WTO to adopt halfhearted rules about importing generic drugs, and I believe that those who tried to block it have blood on their hands. Second, there are too many instances when overly broad patents are awarded, which can cause information flow to be slowed and research and innovation to be stunted.

ONE FINAL IRONY

The most shameful detail in all of this is that all developing countries - whether they were the United States and Switzerland in the nineteenth century or Brazil and Thailand in the twentieth century - had very weak patent and copyright laws. Historically, countries left out of the technological-development loop have emphasized the right of their citizens to have free access to foreign inventions and knowledge. The United States in particular had extremely lax intellectual-property laws at the turn of the twentieth century, which allowed it to freely build up its cultural and scientific resources. Also, the United States’ agricultural economy depended on the importation of crops native to other countries because the only major crop native to North America was the sunflower. [17]

Even the music for the U.S. national anthem, “The Star-Spangled Banner,” was swiped from a popular eighteenth-century English song, “To Anacreon in Heaven.” This old drinking song was written by a group of English dandies in the Anacreonic Club, which was devoted to an orgy-loving Greek bard who lived during the 500 b.c.e. era. (Little do people know when they patriotically sing the anthem at sports games that the tune originally celebrated Dionysian explosions of sex and drinking.) In 1812 lyricist Francis Scott Key borrowed the tune, and in 1931 it became the national anthem.[18] Then in 1969, at Woodstock, Jimi Hendrix famously reappropriated the anthem and drenched it in a purple haze of feedback that fit the violent and dissonant Vietnam era. We are a nation of pirates.

Now the United States and other rich countries want strict enforcements of intellectual-property laws that ensure developing countries will remain uncompetitive within the globalized economy. Again, we wonder why much of the world hates us. Defenders of overbroad gene patents, terminator seeds, and global intellectual property treaties argue that without technologies and legal protections that safeguard their investments, there would be no incentive to develop new, innovative products. Companies such as Monsanto (whose comforting motto is “Food -Health -Hope”) insist that their motivations for doing business are grounded in a desire to prevent world hunger. By creating more efficient products, biotech, agribusiness, and pharmaceutical companies can contribute to the betterment of humanity, they say.

However, if you buy that selfless line of reasoning, then I have a genetically altered monkey-boy I want to sell you (all sales final).

THIS ESSAY ORIGINALLY APPEARED IN THE AUTHOR'S BOOK, FREEDOM OF EXPRESSION®