Biodiversity and Gene Patents
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United Nations Environment Programme UFRGSMUN | UFRGS Model United Nations Journal ISSN: 2318-3195 | v1, 2013| p.244-263 Biodiversity and Gene Patents Luciana Costa Brandão Júlia Paludo 1. Historical background We are noticing an increased consciousness of biodiversity importance in our daily lives, and how its changes (and mostly its losses) strongly aff ect not only our wealth, but also several domains, such as our economy, security, and culture. According to UNEP, “[t]he roles of biodiversity in the supply of ecosystem services can be categorized as provisioning, regulating, cultural and supporting [...], and biodiversity may play multiple roles in the supply of these types of services. For example, in agriculture, biodiversity is the basis for a provisioning service (food, fuel or fi ber is the end product), a supporting service (such as micro-organisms cycling nutrients and soil formation), a regulatory service (such as through pollination), and potentially, a cultural service in terms of spiritual or aesthetic benefi ts, or cultural identity” (Ash and Fazel 2007, 161). Th us besides satisfying human needs, biodiversity also plays a strong role in our culture, whose basis is the relationship between people and the environment, which is diff erent in each society. In this sense, biodiversity loss may imply also the loss of an important set of practices and values exclusive of some communities (Sala 2009). Given its historical importance to humanity, biodiversity was considered part of the “common heritage of humankind”, but this status began to change very recently. Under the former condition, biological elements were treated as a public good, free of claims by States or private companies, and available only for peaceful and scientifi c purposes. Th is concept was internationally legalized by several Conventions, like the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage1 (Gepts 2004). Nevertheless, from the 1970s there was a radical change in the concept of biodiversity, which began to be seen as a patentable product, that is, as a product to be owned by a specifi c body. Th e fi rst known patent ever awarded was in Greece, in the 7th century BC, when a one-year monopoly was conceded over cooking recipes, and industrial 1 Th is 1972 Convention establishes that “parts of the cultural or natural heritage are out of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole” (UNESCO 1972, 1). 244 UFRGSMUN | UFRGS Model United Nations Journal patent laws were established in several European countries during the 18th and 19th centuries (Crucible Group 1994). However, patent protection of organisms, in whole or in part, genetically modifi ed or not, was not allowed in most of the countries until the 1980s, even in the United States, where the patenting process was already common (Adlhikari 2005). However, the U.S. started a new trend for more than 100 years, when a patent on a purifi ed naturally occurring substance was fi rst accepted. In the 1911 case Parke-Davis v. Mulford, the applicant has isolated and purifi ed adrenaline in a form that did not existed in nature and also useful in treatments, which was considered suffi cient to satisfy the criteria of novelty, inventiveness, and utility for patents (Gepts 2004). Th is approach then was extended to living organisms over time. In fact, plant patents exist since 1930, when the United States adopted the Plant Patent Act for Fruits and Ornamentals, comprising new cultivars of asexually propagated crops, such as the potato Solanum tuberosum. Th is trend was adopted by several countries in 1961 with the International Union for the Protection of New Varieties of Plants (UPOV), whose objective is the protection of plants diversity by intellectual property right (Crucible Group 1994, Gepts 2004). However, the change on patent protection became more evident with the famous case Diamond v. Chakrabarty (1980), when the U.S. fi rst challenged the issue of whether genetically modifi ed organisms could be patentable (Gepts 2004). Ananda Chakrabarty developed a genetically engineered Pseudomonas bacterium that could break down crude oil, with the purpose of cleaning oil spills. Her application was fi rst rejected by the US Patent and Trademark Offi ce, since that living things were not patentable at that time. However, on an appeal to the US Supreme Court, the patent was granted, beginning a new era concerning biological and genetic diversity protection (Ash and Fazel 2007). It was only in the 1980s that a longstanding issue was included in the life patenting debate: the one of the recognition and protection of traditional knowledge. Th e concept of traditional knowledge (TK) is strongly linked with the relationship between a community and the environment, that is, the way people utilize biodiversity. A famous case2 involving the San people (South Africa) and the British company Phytopharm concerned about a patent on the Hoodia cactus, which was granted in 1997 by the South African Council for Scientifi c and Industrial Research (CSIR). Th e San have utilized this plant for several reasons, such as a suppress hunger during long hunting trips and to treat stomach pain, and the CSIR saw it as a potential medicine for obesity. Th e Hoodia case is important because not only the San were recognized as custodians of the knowledge involving the Hoodia plant, but also the community was promised a percentage of the company profi ts, opening the debate on access and benefi t sharing (IPR 2002, 2 Th ere are three other famous cases that deserve to be mentioned: the ones involving Turmeric (India), Neem (India and South/Southeast Asia) and Ayahuasca (Amazon region). Th e patents on these plants were contested with the argument of non-novelty, giving the evidence of their traditional use (Mosimege and Holtman 2012). 245 United Nations Environment Programme Mosimege e Holtman 2012). More recently, gene patents made even more controversial the debate on life patenting. Th e controversy is especially because of their clash with the inventiveness criteria, since that patents on products derived from nature are not a novelty anymore, but there is also a strong ethical issue in patenting genes, mainly human ones. In 1994, a patent was granted to the company Myriad Genetics (United States), who isolated BRCA1 and BRCA2 genes, whose mutations put women at high risk of breast and ovarian cancers. Th is patent allowed Myriad to off er an exclusive diagnostic testing service, whose cost (more than 3,000 dollars) has prevented several women from taking a preventive measure against cancer. Th e Association for Molecular Pathology (AMP), along with patients, breast cancer survivors, researchers, and other individuals, contested the Myriad monopoly, and appealed to the Supreme Court. Th e case Association for Molecular Pathology v. Myriad Genetics was not the fi rst one involving human genes, but it is emblematic since that it is currently challenging the legality of gene patents (Pollack 2013, Association for Molecular Pathology et al. v. United States Patent and Trademark Ofi cce et al. 2010). Th e discussion on biological and gene patents, therefore, was developed together with the growing recognition over the last three decades of the importance of biodiversity to the environment and the human well-being. Consequently, the loss of biodiversity strongly concerns the international community, and several environmental agreements since then were signed regarding biodiversity ownership, protection and governance. However, this shift did not happened without a lot of ethic and social controversies, and the main question arisen was who should benefi t from biological and genetic diversity: government, society, patent holders, or just nature itself (Ash and Fazel 2007). 2. Statement of the issue Th e link between biodiversity and gene patents comprehends a two-way relationship, which means that they aff ect each other in a mutual casual relation. Biological and genetics diversity serve as basis for every kind of future development, direct or indirectly. Th ey guarantee food security, health and also the production of materials and goods through bioprospecting activities. On the other way, international community has had to deal with the great risk of biodiversity and genetic erosion. Gene patenting and the system of intellectual property rights (IPRs) can be understood both as tools that help to ensure nature conservation but, also, from a diff erent point of view, as a threat to biological and social diversity, part of a mechanism that plunders the environment in benefi t of companies in search for economic profi t. In this session, this confl ict will be addressed considering the unique roles of multiple actors—at international, national and local level—and the multiple opinions and interests at stake. 246 UFRGSMUN | UFRGS Model United Nations Journal 2.1. What is biological and genetic diversity and the risk of erosion Th e concept of biodiversity represents the idea of life’s variety on Earth. It encompasses three levels of organization: the diversity of ecosystems and habitats; the amount of living species; and, at last, the genetic diversity. Biodiversity, then, includes not only the abundance in numbers of habitats, populations, individuals and genes, but also incorporates the process among them and, recently, involves the concept of human cultural diversity (UNEP 2007). Genetic diversity is then understood as “the key to human survival” (Crucible Group 1994, xiv) and the source of necessary biomaterials that are needed to meet new opportunities3, in economic and social realms, and also to overcome possible new dangers, such as climate change. Th e loss of biodiversity consists an emerging issue and a great risk to the planet and to human life, constituting itself in a great concern for the international political community.