Arguments For and Against GMO Patents

We currently live in the dawn of the age of modern biotechnology which has delivered many benefits to various industries, including that of the agricultural sector. Some of these benefits, which are passed onto society as a whole, have come thanks to companies being able to protect their intellectual property via patents, including genetically-modified organisms (GMO’s). However, there has been an aggressive push from science denialists from the anti-GMO camp to demonize this technology, which has combined with those who are against intellectual property rights and patent laws. This article examines the background to agribiotech and patent protection, arguments for and against GMO patents, and a final reasoning as to why the latter group are incorrect in their anti-science position.

Introduction

Humans have been engaging in biotechnology (that is, the use of living organisms and manipulation of their genes to produce goods) since the dawn of civilization; just look at the exploitation of yeast for the fermentation process to produce beer in ancient Sumeria and Babylonia in ~7000 BCE (Colwell, 2017). However, it wasn’t until 1972, when Herbert Boyer and Stanley Cohen first transferred DNA from one microorganism to another, that we found ourselves in the dawn of modern biotechnology (Cohen, et al., 1973). In contrast to the past, we now have a plethora of sophisticated and precise tools (such as the now famous method known as CRISPR) at our disposal to manipulate the genes of organisms to develop desired products (Gao, 2018). However, these tools have not come cheap, and are in fact the fruits of years of research and an enormous injection of capital. In fact, in the United States, it takes, on average, 8 years and $136 million to develop a new genetically-modified (GM) product for agricultural use, including getting through the intense regulatory hurdles (McDougall, 2011). Due to this significant investment, scientists, universities, and companies need to ensure staunch protection around their intellectual property (IP), and the most common method involves the use of patents.

Patents, as defined by the World Intellectual Property Organisation (WIPO), are ‘an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem’ (WIPO, n.d.). They afford the owners of a granted patent the right to exclude others from exploiting their IP for a period of, most commonly, 20 years. (Gwartney, 2009). This creates a temporary monopoly where the inventors have a chance (not a guarantee) to recoup expenses associated with the R&D that has gone into the development of a patented invention, without worrying about unfair competition (Clark, 2011). This is particularly important in the biomedical and biotechnological fields given the exceptionally high R&D costs associated with innovating. In fact, contrary to popular myth, patents in these fields do not hinder innovation, but rather facilitate it thanks to the use of licensing agreements, research exemptions from patent protections, and competitors being able to see the publicly available publish patent to then attempt to jump ahead to the next step in development (Clark, 2011). This article will present common arguments used both in favour of and against patenting genetically-modified organisms (GMO’s) in the agribiotech industry. Finally, the myths, misconceptions, and lies utilized by the anti-GMO and patent-skeptic community will be debunked through an evidence-based approach.

Arguments in Favour of Patenting GMO’s

Ever since the positive ruling in favour of Dr. Chakrabarty by the US Supreme Court in 1980 (whereby the scientist Dr. Chakrabarty had invented a GMO bacterium that was initially ruled patent-ineligible by patent examiners, had this decision overturned), scientists and companies have been confident in seeking IP protection in the form of patents for their GMO’s (Diamond v. Chakrabarty, 1980). With respect to an argument in favour of patenting GMO’s, the above ruling gives a strong legal basis, specifically, that sufficient alteration of the base microorganism had occurred to count as a form of manufacturing for a novel use (that is, for the newly-developed bacterium to break down crude oil, a property not held by any known bacteria; Diamond v. Chakrabarty, 1980).

However, we must also recognise that just because something is legal, it does not necessarily make it ethical (obviously this is not to state that legal arguments are not of great utility and importance; in many cases they have been given strong ethical and philosophical consideration; Parker, 2010). Therefore, an important ethical and practical point that is in favour of allowing GMO’s to be patented is the fact that the technology provides ways to more effectively and cheaply feed the world (Gerry, 2015). Since the population is forecast to reach 11 billion by the end of this century, and conventional farming is unable to efficiently and effectively deal with the demand, humanity has a moral imperative to develop innovative solutions to this emergent problem (Gerry, 2015). And as mentioned in Clark (2011) above, patents provide a method to spur on innovation; therefore, it can be seen as a version of the Kantian categorical imperative for as many companies as possible to engage in an arms race of sorts in order to bring about the most useful GMO’s for use in the agribiotech sector (Technion, 2017). Furthermore, the use of GM technology can help prevent the extinction of crop varieties that we hold dear due to events such as disease and climate change (GLP, n.d.). From an environmental ethics standpoint, if we humans have the technology to prevent such losses, we should act on it, otherwise we risk losing important crops such as banana varieties; this indeed occurred with the Gros Michel banana which went extinct due to infection with Panama disease (see below; Scharping, 2017). Therefore, it should be seen as not only moral grandstanding, but severely unethical, to rail against industry obtaining patents on GM crops that could be made disease resistant, especially when you have low-socioeconomic regions like Africa so dependent on crops like bananas to survive (Remy, et al., 2011; McNeil Jnr, 2009). Therefore, if you want to prevent hunger, you should embrace companies patenting GMO’s to spur on innovation and bring more of these products to market (Juma, 2011).

Arguments Against Patenting GMO’s

Arguments against patenting GMO’s for use in the agribiotech sector usually come from either an anti-GMO camp, or from those who are fundamentally against the patent system. Regarding the former, common arguments include: 1. The potential for environmental risk regarding the release of GMO’s, 2. Just because there is no known harm now, doesn’t mean there won’t be a new finding in the future, 3. Natural is best (Debate, n.d.), 4. The religious argument that all life is sacred (Koepsell, 2007). With respect to arguments against patents: 1. Because the US Supreme Court decided in 2013 that human genes are not patentable, this should extend to all genes (Pereira, 2013), 2. Big business uses patents to prevent small farmers re-using seeds (Debate, n.d.), 3. Patents stifle innovation, 4. Patent litigation favours big business over ‘the little guys’ (Weissmann, 2012). On the face of it, there appear to be a plethora of arguments against the patenting of GMO’s. However, it is important to dig a little deeper, and look at the quality of these arguments.

Debunking the Misconceptions & Solidifying the Case for GMO Patent Rights

Firstly, from a scientific perspective, one needs to merely look at the stark contrast in the type of references making claims about GMO’s and patents, with those against typically appearing in mere newspapers, blogs, and biased non-governmental organizations, rather than quality, peer-reviewed scientific and legal literature. Regarding the potential for environmental risk regarding the release of GMO’s, they are extensively tested with none causing problems, and also there is the worse risk of not using GMO crops to tackle food issues (Hall, 2016). And in terms of potential for future harm, well that applies to non-GMO’s too, but as study after study mounts showing the safety of GMO’s, the likelihood of an issue arising nears zero (Skeptical, 2015). One of the silliest arguments against GMO’s is the naturalistic fallacy, which is a logically fallacious argument; remember, smallpox is natural, floods are natural: nature simply does not care (Daston, 2015). It should also go without saying, that religious arguments are not to be taken seriously when we have a more rigorous system for understanding the world; science (Haggarty-Weir, 2018). Science and the scientific method are the best tools we have for exploring our understanding of the world around us and how things work. So any scientific issues should be dealt with scientifically, and not through delusion (aka, religion).

In terms of the anti-patent arguments, the Supreme Court decision in 2013 has often been misrepresented; in fact synthetic genes are indeed patentable (Klusty & Weinmeyer, 2015). Also there were numerous issues with the reasoning used in the Myriad genetics case, but that’s still legally debatable. Next, when people bring up the terminator technology they are being either disingenuous or are ignorant, since the terminator technology has never actually been commercially used (Monsanto, 2017). Further, this is an issue of contracts law, not patent law (Scott, 2017). The argument of patents stifling innovation is also something that has been thoroughly debunked, and interested readers are encouraged to check out Clark, 2011 (see figure below) and Zhou, 2015. Finally, the argument that the patent litigation system favors big business due to the requisite costs is simply not GMO patent-specific and regards legal system reform (Gyles, 2014). I do agree that we should be aiming to equal legal playing fields, but that applies to all areas of society.

Conclusions

Exploiting patents for GMO’s helps human society significantly advance, especially in the agricultural sector. It is imperative that we address the issue of GMO’s through the lens of science. That is to say, evidence over ideology. Otherwise we all risk losing out.

Acknowledgements

Many thanks to Mr. Adam Bennett, trainee patent attorney at Ellis IP, for his feedback and contributions to this article.

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