Owning Varieties of Life: Historical, Conceptual, and Ethical Dimensions

Ned Hettinger

Associate Professor of Philosophy
College of Charleston
Charleston, SC 29424

[published September 1992]

In 1987, the US Commissioner of Patents announced that “the Patent and Trademark Office now considers non-naturally occurring, non-human multicellular living organisms to be patentable subject matter.” The Commissioner was simply following the Supreme Court’s lead. In allowing the patenting of a genetically engineered oil-eating bacterium eight years earlier, the Court claimed that Congress intended patentable subject matter to “include anything under the sun that is made by man.” “Industrial” or “utility” patents for plants were next (something Congress for fifty years had explicitly considered and rejected), and by the end of the decade, Harvard University had received the first patent on animal life. It patented the “oncomouse,” a mouse genetically altered to contain a cancer-causing gene; half of the offspring of such mice develop breast cancer within ten months making the mice profitable specimens for cancer research. As the major sponsor of the research, E.I. du Pont de Nemours & Co. received an exclusive license and is selling the patented mouse.

Even human material is now patentable: the University of California at Los Angeles (UCLA) patented a cell line produced from the spleen removed from a leukemia patient named John Moore. The commercial potential of the pharmaceutical that this cell line can produce reportedly runs over a billion dollars, but in July 1990, the California Supreme Court ruled that Moore had rights to none of it. Culminating this frenzy for life patents, the National Institutes of Health (NIH) recently applied for patents on several fragments representing about 5% of the human genome. The new biotechnologies promise a lot; in some cases they have already delivered. In medicine, there are tests that can determine the likelihood that a person, potential children, or a fetus will contract genetic diseases (possibly including alcoholism). DNA “fingerprinting” is already used in law enforcement (though not without considerable controversy). In agriculture, pest-resistant and nitrogen-fixing genetically engineered plants could make possible a less chemically based agriculture. Human growth genes inserted into various food animals may produce larger, quicker growing animals that use less feed. Dramatic increases in agricultural yields are possible and this would help with the problem of world hunger and enable us to feed an ever increasing human population. The future promises “gene therapy,” that is, replacing damaged, disease causing (and perhaps even age causing) genes and transforming animals into living factories that churn out improved protein-based drugs.

There is considerable controversy over whether or not modern biotechnology is revolutionary. There is nothing new about human beings manipulating other living organism for practical purposes. (Consider, for example, using microorganisms to produce wine and cheese.) We have practiced a form of genetic engineering for thousands of years by selectively breeding animals (including humans) and plants. Such manipulations of the genetic structure of living organisms for our purposes is a reasonable explanation of the nature of genetic engineering.

Nonetheless, there are notable differences between contemporary biotechnologies and those of the past. Recent techniques are faster and far more precise than traditional whole organism cross breeding. They make it possible to isolate a gene (or parts of a gene) from the genome of a particular species, combine it with genes from other species, produce large amounts of these genes and their products (by cloning), and then insert them into the inheritable genetic code of an organism. Modern genetic engineers can produce organisms that have a specific desirable characteristic (e.g. frost resistance or salt tolerance), while traditional whole organism cross breeders produce organisms with a variety of new traits, many of which are undesirable and difficult to breed out. Modern genetic engineering can produce “transgenic” organisms, that is, organisms whose “hereditary material has been augmented by adding DNA from a source other than parental germplasm.” Genes have been moved not simply between species (e.g. from a human to a pig), but across the plant and animal kingdoms. Tobacco plants have been made to glow after a firefly gene was inserted into them.

The environmental, ethical, and social significance of this technology should not be underestimated. Some have suggested that the changes in the planet that will result from the use and release of biotechnical products will dwarf the changes that have resulted from the use of petrochemical-based products. The World Resources Institute sees genetic material as the oil of the Information Age. As one commentator put it, “natural resources are going to matter less. The real action is going to be in the gathering of genes.” According to Bill McKibben, biotechnology involves “the second end of nature” (global climate change is the first) and he finds great significance in beginning to manipulate nature, as he says, “from the inside out.”

The History of Intellectual Property Protection for Living Organisms

Patenting life forms may not appear to be a new or revolutionary step either. After all, patents on biotechnical processes such as fermentation were first issued in the United States in the early 1800s, and one such patent (issued to Louis Pasteur in 1873) included a claim for a yeast as an article of manufacture. Congress specifically passed a Plant Patent Act (PPA) in 1930. Why, then, has there been such recent commotion about patenting microorganisms, plants, or even animals?

The vast majority of major crops grown in North America are not native to this continent. For most of this country’s history, importing genetic material, improving varieties of crops (and breeds of animals?), and distributing seed were publicly funded and performed by the federal government, through the United States Department of Agriculture (USDA), land grant universities, and agricultural research stations. In 1897, the USDA freely distributed 22 million packets of seeds to farmers. But this century has seen a definite trend toward the “privatization of biological material.” By 1924, industry had persuaded Congress to end free federal distribution of seeds, and in 1930 industry lobbying culminated in the Plant Patent Act.

The Act only protects plants that could be reproduced asexually (for example, by rooting clippings) and benefited the horticulture industry. Sexually reproduced plants were not protected because of perceived problems in enforcing patents on them. Unlike asexually reproducing plants (whose progeny are genetically identical to the parent plant), sexual plants do not generally breed “true to type.” Thus, it would be much more difficult to know if a patent on a sexually propagated plant had been violated, since an infringing plant might be quite different from the patented parent.

Furthermore, patent law has traditionally been understood to require that an invention be disclosed specifically enough to be identically reproducible. In 1930, sexually reproduced plants could not be identically reproduced (much less could breeders explain the genetic processes that they manipulated). Traditionally, patent claims had to meet this so-called “enablement requirement” by including a description of the patented invention so detailed that it would enable a person skilled in the field to make and use the invention as a result. But this requirement had to be loosened for “living inventions” since they are not as easily specifiable as are mechanical or chemical ones, and the disclosure required by the PPA is weak.

Although the PPA is administered by the Patent and Trademark Office and issues what it calls “patents” to supposed “inventors,” it is quite different in a number of ways from the utility patent statutes. It includes a research exemption that allows competing companies (and universities) to use the plant for further breeding. Furthermore, unlike general utility plant patents, independent invention does not infringe the patent under the PPA: infringement only results if the plant was cloned from the patented plant.

Although those involved in breeding sexually reproducing plants had hoped for protection under the 1930 PPA, they had to rely on hybridization and seed certification for the next 40 years until the Plant Variety Protection Act (PVPA) of 1970 gave protection to new plant varieties reproduced sexually using seeds. But again, this is not a plant utility patent. It is administered by the USDA (rather than the PTO) and issues “certificates of protection to breeders,” not “patents to inventors.” It does not require that the new variety be useful (general utility patents are issued only for useful inventions), but only distinct, stable, and uniform. It also did not prohibit farmers from using seeds from the protected variety in their own fields (as do utility plant patents). Like the PPA (and again unlike utility plant patents), it included a research exemption that allowed any researcher to use the protected seed to develop new distinct varieties. The property right was further restricted by a “public interest exemption”: If the health of the American economy and food supply was negatively affected by a certificate holder not releasing a crucial variety, the Secretary of Agriculture was allowed to require commercialization through compulsory licensing.

This longstanding reluctance on the part of the PTO and Congress to allow utility patents for living organisms was finally broken by the Supreme Court’s Chakrabarty decision in 1979. The ruling held that although “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter” since “such discoveries are ’manifestations of...nature, free to all men and reserved exclusively to non’,” Chakrabarty’s genetically altered oil-eating bacterium had “markedly different characteristics from any found in nature...and is not nature’s handiwork, but his own; accordingly, it is patentable subject matter.”

In 1985, the first plant patent was issued under the “utility patent” laws that protect mechanical and chemical inventions. Kenneth Hibbert received a patent for a variety of corn that contained an increased level of an amino acid (and whose progeny did as well). Note that Hibbert used conventional cross breeding techniques, not the newer biotechnologies that produce transgenic organisms. Thus, although utility patents for living organisms and material resulted in large part from the existence of new transgenic organism producing biotechnologies (e.g., rDNA techniques), it is unclear how many of the new organism utility patents apply to the results of traditional breeding methods that were previously deemed inappropriate for patent protection.

Plant utility patents are significantly different from the two earlier ways of protecting plants. For example, the “plant invention” must be useful and not simply distinct. Utility plant patents also prohibit farmers from saving and using their seeds, a significant restriction given that almost 50% of wheat and soybean crops are grown from farmer-saved seeds. Utility patents also lack a research exemption, thus providing a barrier to further innovation. Furthermore, independent inventors are prohibited from using their inventions if they have been previously patented. Utility patents are much broader in scope, allowing patents not only on entire organisms but on plant parts, seeds, and other genetic material as well (including genes). Such patents also allow multiple claims to be filed simultaneously on a variety of different products and processes in different species. Because they provide this broader protection and are cheaper to obtain, general utility patents are the preferred method of protecting plant-related innovations.

Though one must meet more stringent disclosure requirements to receive a patent under the utility patent system than under the PPA, general utility patents for organisms (like under the PVPA) substitute a deposit requirement for the traditional enabling description: Since plant “inventors” are not able to provide a description detailed enough to explain how to build their “organism inventions,” depositing a representative sample in a public depository is supposed to make up for this inability.

After a ruling by the Patent Board of Appeals in 1987 that oysters are patentable subject matter (though the particular variety at issue was not since it had been “found in nature”), in April of 1988, Harvard’s oncomouse became the first animal to be patented. As of May 1992, the Harvard mouse is the only patented animal.

One wonders why utility patents on organism innovations took so long to develop, especially given Congress’ specific desire to protect certain kinds of plant innovations as early as 1930. Also, given that compositions of microorganisms have been patented since the 1800s, why has Chakrabarty been seen as such a giant step?

I do not think there is any clear answer to this question, nor any one decisive factor at work. One suggestion is that as biological science and technology advanced and we became better able to understand the processes by which living organisms can be manipulated to possess desirable traits, the idea that we are inventing and creating something becomes more plausible. The more control over an organism’s traits we have, the more it can be seen as an artifactual creation, which might be appropriately patented. I also think there is a mystique about the new biotechnologies, which gives us a (largely false) sense of power, control, and understanding. Political considerations probably also played a significant role: for the last 15 years (since the Carter Administration) there has been an anti-regulation trend in government and a desire to stimulate private business activity in areas in which the government once had a large role.

One underlying theme of this history is that Congress, the Courts, and the Patent Office have been reluctant to include living organisms under the general utility patent statutes. These statutes were originally designed to protect and promote mechanical inventions, not living organisms. We shall see that there are good reasons for this initial refusal to protect and encourage innovative activity involving living organisms with the same legal tools used to protect and stimulate mechanical invention.

Are Living Materials Justifiably Owned as Intellectual Property?

The question I want to address is: Are living organisms and genetic material justifiably owned as intellectual property? More specifically, I want to explore whether it is appropriate for human societies to issue utility patents for these results of biotechnology. I will consider four arguments for such property:

  1. the natural entitlement to the fruits of labor rationale,
  2. the desert rationale,
  3. the exchange for secrecy rationale, and
  4. the consequentialist incentive rationale.

In assessing the justifiability of intellectual property of any type (e.g., patents, copyrights, and trade secrets) one must consider an important logical feature of this type of property. Unlike things owned as tangible property, e.g., wristwatches, what is owned as intellectual property, e.g. inventions, are non-exclusive. Use of a wristwatch by one person excludes others from using it. Use of a genetically engineered tumor-causing gene does not: Cancer researchers throughout the world could use animals with this genetic material. By giving Harvard a patent on the “oncomouse,” we legally allow the university to exclude anyone else from creating or using such animals.

Because inventions (and other types of things owned as intellectual property, e.g., writings) can be used by everyone at once, justifying exclusive property rights in them faces a burden of justification not shared by the justification of tangible property. It is prima facie irrational, I submit, for society to grant individual monopoly rights to something that by its very nature can be used by everyone at once. It makes sense for society to grant exclusive rights to tangible objects because one person’s use of and benefit from them requires excluding others. It is wasteful and inefficient, however, for society to let only one person (or institution) use and benefit from something that all could use and benefit from concurrently.

Of course without such intellectual property rights there may not be adequate market-based incentives for individuals to produce these inventions. Because of this, I think that just as there is a burden of justification on those who want to grant monopoly rights to inventions, so too there is a strong prima facie reason to use public funding for invention (and to make freely available the results) as the social mechanism for insuring their creation and dispersal. Thus I see the historical trend away from public funding for the creation of new varieties of organisms and toward private ownership of genetic innovations as unfortunate. On grounds dealing solely with the nature of intellectual property, we have strong reasons to question the social wisdom of allowing the patenting of living materials.

The Natural Entitlement Argument

An often-used justification of property rights is that people are naturally entitled to the fruits of their labor. This originally Lockean argument boils down to the intuition: I made it and hence it is mine; it would not have existed but for me. Baruch Brody appeals to this argument at the end of a lecture defending the patenting of transgenic animals because it stimulates useful animal related inventions. He says: “These consequentialist considerations may be re-enforceable by an appeal to patents as a way of satisfying the inventor’s entitlements to the fruits of his or her labor.”

I have argued in other places that a patent itself, as well as the market value of a patent, are socially created phenomena; they depend respectively on the social structures that create and enforce the patent system and on the demand of others. A patent cannot exist in a society without a system of law and a patent has no market value when individuals in a society are too impoverished to buy the patented invention. Since neither a patent nor the market value of a patent is the fruit of the inventor’s labor, an inventor cannot be naturally entitled to either on the ground that they are the fruits of her labor.

Being Naturally Entitled to Other Living Beings

In addition to this general argument against inventors being naturally entitled to patents in their inventions, there are more specific problems with claiming that a biotechnologist is naturally entitled to a patent in genetically engineered organisms as the fruit of her labor.

If anything is naturally entitled (that is, entitled by nature) to own a living organism, it is that living organism itself. When Locke argued for a natural property right to the fruits of labor, he did so by starting from the claim that we have a natural property right in our own bodies and then extending this right first to the activity of our bodies (that is, our labor) and secondly to the fruits of this activity. Having the right to use and benefit from one’s own body is a paradigm case of a natural entitlement. I come into the world with a naturally and metaphysically grounded claim to my arms or to my cells. No one else is born with this special moral relationship to my body. The claims of others to my body are created by social contract (e.g., if I promise to sell you some of my blood) or by special circumstances such as need; they are not “natural entitlements.”

What I am suggesting is that living beings come into the world with a claim to use their own physical characteristics for their own benefit. The DNA in a bacterial cell naturally belongs to that bacterium and not to the researcher; the trunk of a tree is something to which the tree, not the lumber company, is naturally entitled; the calf, not the farmer, naturally owns the flesh of its own body. These features of these organisms exists by nature for the benefit of those organism. Though none of these organisms are able to exercise these claims to their bodies on their own behalf, humans can exercise the claims for them.

These natural entitlements (or claims) are not absolute, however, and can be overridden by other, stronger moral claims (for example, genuine human needs can outweigh them). Furthermore, human property arrangements pertaining to animals or plants are not necessarily ruled out on this view (though ownership of living beings will involve duties to the organisms, as well as privileges with respect to them). My claim here is only that ownership of another organism (or a type of organism) cannot be justified on grounds of natural entitlement. No living being is naturally entitled to own any other living being. This is true, I think, even when one being is casually responsible for the existence of another or has manipulated its characteristics.

Central to this argument is the claim that living beings have an individual welfare, that their various physical features exist by nature to serve. Unlike artifacts (such as machines), inanimate natural objects (such as mineral or chemical compounds), or even parts of living beings, any living being has a good of its own (or welfare interest) and can be benefited or harmed without reference to any other being. (For example, crushing the roots of a tree with a bulldozer harms the tree; it is a setback for its own welfare, and not simply bad for the homeowner who wants its shade). What specifies the good of a living being is (in part) its genetic program, which defines its biological functions, whose fulfillments constitute the organism’s good.

Unlike teleological machines (such as heat-seeking missiles) whose artificial functions are programmed into them by purposeful beings and thus are attributable to the programmer, living organisms have biological functions original to them. Though the pressures of natural selection on their species to adapt to an ecological niche is the (main) causal reason their genetic program is what it is, the biological functions this program specifies determine what is good for that individual itself. Just as we would say that a human being’s biological needs for food and water constitute its own good, even though the needs were programmed into it by evolution, so too should we allow that a plant’s biological need for nutrients and water constitute its own good, even though these needs were programmed into it by evolution.

In the case of non-naturally occurring organisms that biotechnologists (including plant and animal breeders) have genetically manipulated for human purposes, at least some of their capacities are artificial and thus not their own. The tobacco plant’s ability to glow does not specify something that is good for the tobacco plant itself; the fulfillment of this capacity of the plant is a good more properly attributable to the genetic engineer and her purposes than to the tobacco plant itself.

Nonetheless, there remain numerous original genetic traits and consequent biological functions that specify the flourishing of the organism independent of the genetic engineer (e.g., respiration and photosynthesis). The satisfaction of these biological functions constitute the organism’s own good. Thus even genetically altered non-naturally occurring organisms have their own goods.

I do grant that the more an organism is genetically manipulated and programmed to serve human purposes, the less plausible it becomes to argue that it has a good of its own. At some point, perhaps, living organisms could become so artifactual as to be closer conceptually to teleological machines (whose functions are parasitic on their designer) than to naturally occurring entities with a good of their own. Contemporary genetic engineering, which can modify very few genes at a time, is far from the creation of such living artifacts.

That all organisms have their own welfare is not sufficient to show that they have a prima facie claim on us to respect that welfare. (Put in more familiar language, that a being has a good of its own does not by itself entail that the being is morally considerable.) Sophisticated arguments can and should be developed to make this connection, but for the present purposes the following argument will have to suffice: If we think that the welfare interests of human beings ground prima facie duties not to undermine the satisfaction of those interests, then we should think that the welfare of other organisms also grounds similar duties to them.

If we accept that we have prima facie duties to respect the welfare interests of other organisms, then we should acknowledge their fundamental natural entitlement to use their own bodies for their own benefit. It seems incongruous to deny that an organism is naturally entitled to use its own body for its own benefit while acknowledging that the organism has (prima facie) claims on us to respect its welfare. And if an organism is naturally entitled to its own body, then a genetic engineer cannot be naturally entitled to it as well.

From Non-Sentient to Sentient and then to Human Organisms

It is easier to defend an argument of the above sort to the more limited conclusion that genetic engineers are not naturally entitled to the organisms they manipulate when those organisms are sentient. The ability of sentient beings to feel pleasure and pain and their possession of preference interests (such as, wants and desires) in addition to welfare interests make it easier for us to regard them as beings with an independent existence and well-being that we ought to value. It is respect for these characteristics that undermines the claim that people can have natural entitlements to other living organisms.

It is interesting to note in this connection that we have had a type of plant patenting since 1930 and that in the first three years since utility plant patents were allowed, forty-two were issued. In contrast, there have been no other animal patents issued in the four years since Harvard patented the oncomouse, despite the fact that over twenty animal patents were pending at that time. Several bills dealing with animal patenting have been introduced in Congress, but none (as far as I’m aware) concerning plant or microorganism patents. Clearly there is greater public concern about patenting animals than with patenting other life forms. I think there are serious moral and philosophical problems with justifying patents on any living organism, not just with patenting our closest cousins, the sentient animals.

The poverty of the natural entitlement to the fruits of labor argument when applied to living organisms is even more evident when considering human organisms. No one thinks that parents are naturally entitled to own as property the fruits of their labor, namely, their children. A parent needing a kidney transplant, who claimed a natural entitlement to the use of his child’s extra kidney because, after all, the kidney is the fruit of his labor, does not have a compelling argument. Similarly, future genetic engineers will not be naturally entitled to own as property the genetically improved human beings they are partially responsible for creating.

It is therefore distressing to see the Supreme Court’s decision in Chakrabarty to allow patenting of microorganisms, followed so quickly by the patenting of plants, animals, and even human tissue, without any careful articulation of possible morally relevant differences between the patenting of these various organisms and types of living material. One of the arguments for patenting microbes that was used in the debate leading up to the Supreme Court’s Chakrabarty decision was that allowing such patents would not result in patents on higher life forms. I frankly will not be surprised if the PTO continues this trend by approving NIH’s human gene fragment patent applications.

Owning Kinds, Not Individuals

Organism patents do not simply give one ownership of the particular animals, plants, or microbes one has engineered. One does not need a patent to own the particular organism one has genetically altered – ordinary property rights are sufficient for this. Rather, organism patents give the patentee rights over all instances of the type of organism she has genetically engineered. To say that the patentee is naturally entitled to all of these organisms because they possess a gene that they would not naturally have is, in my mind, even more disrespectful than claiming that someone is naturally entitled to a particular created individual.

Owning Progeny and Troubles with Patenting Self-Replicating “Inventions”

Note further that organism patents grant their owners rights to the future descendants of the genetically manipulated organisms in those cases were the genetic alteration is successfully passed on. This is why utility plant patents prohibit farmers from saving their seeds and why Harvard can prohibit those to whom it sells the oncomouse from breeding it. Holders of the future patent on genetically altered food animals will be able to prohibit the farmers to whom they sell their patented animals from breeding them. Whose labor are these animals the fruit of, the farmer’s, the genetic engineer’s, or the animals’ parents?

Because living organisms are self-replicating, to allow patents in them poses unusual problems for the patent system. As one commentator notes, “The sale of a patented product used to take it out of the monopoly: the purchaser could use the product in any way without further restriction.” Not so with selling patented organisms. The sale of an instance of a patented organism can at the same time be a sale of the means by which to replicate the organism and thus violate the patent. This is analogous to a compact disc (CD) manufacturer selling both CDs and CD duplicating machines and then claiming that the purchaser is violating copyright by duplicating the CDs. Shall we charge genetic engineers who sell their patented organisms with the contributory infringement unless the organisms have been designed so as to be sterile or unable to reproduce “true to type”?

Owning Organisms versus Owning Genetic Material

My argument has been directed against the claim that genetic engineers are naturally entitled to the organisms they produce. This argument does not apply to parts or characteristics of living organisms nor to the genetic material underlying these characteristics. Since these are not living organisms (although they are living material), they are not independent individuals with a good of their own. Thus my argument that an inventor cannot be naturally entitled to a living organism is not directly applicable here. Might genetic engineers be naturally entitled to parts or characteristics of organisms or rDNA sequences, when they are not naturally entitled to living organisms themselves? Although these things originate in living organisms, they can be removed from them, and so this distinction might have a practical significance. Though UCLA doctors and researchers are not naturally entitled to John Moore (nor to Moore’s spleen), might they be naturally entitled to the cell line they developed from his spleen?

Claiming natural entitlement to engineered genetic material might be more disrespectful of life than is claiming natural entitlement to particular types of organisms. Genetic material, while not itself a living individual organism, is the fundamental information process underlying all life. It is the vehicle of evolution and the process by which life developed on this planet. If one can have moral obligations to respect processes, rather than simply individuals (as environmental holists claim), then one might think respect for these processes is even more important than respect for the individuals. In any case, it will take a different argument than the one given earlier to reach the conclusions that one is not naturally entitled to own genetic material or parts and characteristics of organisms.

Discovering, Creating, or Altering Genetic Material and Organisms

Whether a gene (or gene fragment) has been “invented” rather than merely discovered or altered makes a difference to the plausibility of researchers’ claims to patent it. “I discovered it, hence it is mine” is much less persuasive than is “I made it, hence it is mine.” Even more implausible would be the claim that “I discovered it, so it, and anything like it, is mine.” Issuing patents on genes or gene fragments to researchers because they were the first to discover them is an example of this. This is why I find NIH’s patent applications on human gene fragments so outrageous. Being the first to find, identify, and categorize a natural phenomenon does not give one any moral claim to own any phenomena of that sort. As the Commissioner of Patents said one hundred years ago, “to find a new gem or jewel in the earth would [not] entitle the discoverer to patent all gems which should be subsequently found.” Similarly researchers who discover naturally occurring genes have no business claiming them as their intellectual property.

Today’s Patent Office, however, does consider genes and other genetic materials to be patentable subject matter. Their position is that “a composition of matter occurring in nature will not be considered patentable unless given a new form, quality, properties or combination not present in the original article existing in nature.” According to one analysis, this position corresponds to “a long-standing doctrine that the purified form of a chemical can be patented if the chemical is found in nature only in an unpurified form.” Since genetic material is only found in nature in an “impure form,” that is, as part of organisms, those who isolate the genetic material have come up with something that does not exist in nature (and so is novel), and thus if useful and non-obvious, it is patentable.

But isolating a piece of nature from the rest of nature is not invention (no matter how difficult it is). Nor should moving pieces of nature around count as invention. Though there is some inventiveness here, isolating a gene for straightness from one species of tree and placing it into another is more like moving spruce bud worms from one tree to another than it is like creating or inventing a tree. Even moving a half dozen pieces of nature around is not invention, though when we are talking about genetic material this will be extremely difficult to do. Until genetic engineering advances far beyond its current state, it is best understood as discovery and alteration, not invention. Hence a Lockean labor argument for patents — I created it and so it belongs to me — cannot be appropriately applied to the results of genetic engineering.

The Desert Argument, the Source of Value in Genetic Innovations, and the Social Character of Invention

I do not deny that there are important and morally relevant differences between the inventor of a genetically altered organism and other people who did not invent the organism. One important difference is that a person who labors and creates something deserves a reward for her efforts (assuming that the efforts are aimed at socially useful and not harmful results). This desert argument is another of the traditional rationales used to justify property rights. Can it successfully be used to justify intellectual property in genetically altered life forms?

That a genetic engineer deserves some reward for her labor does not imply that what she deserves are property rights in the object (or type of object) created. The created invention that makes a laborer deserving of a reward need not be identical with the reward deserved. On my view, what the laborer deserves is a reward that is proportional to the degree of effort expended in invention, not a reward equal in value to that of what was created. Given the huge market potential for some of the results of genetic engineering, awarding a patent to the inventor of a genetic innovation can give her far more of a reward than she deserves.

Consider the following example: A researcher discovers that a combination of two bacterial genes when placed in the inherited DNA of legumes allows them to grow with only 20% of the water they normally need. The value to human beings of this characteristic would be enormous, as would the market potential of the genetically altered plants. A patent in this innovation could provide its maker with a reward vastly out of proportion to the effort she expended.

Even if one insists that the value of the reward should be equal to the value of the invented product (instead of the effort expended), an idea that I think misconstrues the moral category of desert, a patent in the altered plant variety would be grossly out of proportion. Surely a laborer deserves (I would say is entitled to) only the value she adds to the world. Unless one uncritically accepts the labor theory of value (according to which human labor creates all value), one has to admit that much of the value to human agriculture of these new drought tolerant plant varieties originates in the genetic material removed from the two bacteria.

Genetic material understood as accumulated instructions for how organisms can successfully cope with their environments is a highly valuable natural good which evolutionary processes have provided to the Earth’s inhabitants. Allowing engineers who discover and rearrange rights to any such organism is letting them capture value way beyond what their innovative activity added to the world. A botanist, who objects to plant patents on these grounds, puts it this way:

Such legislation gives credence to breeders who can manipulate one or two genes of a traditional land race that evolved over thousands of years and then claim that something novel has been created...Few of the edible, nutritional characteristics of the seed plants that now sustain us evolved for our benefit, under selective pressure from our forebears or through conscious breeding by scientists. We are literally living off the fruits of other creatures’ labors — those of the birds, bugs, and beasts that loosely coevolved with seed plants over the last hundred million years.

There is undoubtedly value added by the innovative activity of biotechnologists, but it is small when compared to the value of the genetic material itself.

Additionally, a good deal of the value of these drought resistant legumes is attributable to the intellectual predecessors of the genetic engineer who developed it (e.g., Darwin and Mendel). Saying that the genetic engineer is responsible for the entire value of the invention is like saying the last person to pitch in lifting a car should get full credit for lifting it. Genetic engineering, like any other intellectual activity, is fundamentally social in character. Giving individuals patent rights to exclude the rest of society from the invention ignores the fundamentally social character of invention. Of course the patent monopoly is not issued in perpetuity, but is limited to 17 years, after which anyone can freely appropriate it. This can be seen as an acknowledgment that the inventor is only partially responsible for the invention.

Holding Genetic Innovations as Trade Secrets and the Exchange for Secrecy Rationale for Secrecy Rationale

Trade secrets are another mechanism by which genetic engineers can obtain intellectual property in their innovations. Trade secrets are different from patent in that they only prohibit unauthorized disclosure of and access to the innovation; they do not prohibit others from making, using, or selling the innovation (as do patents). Trade secrets do not protect against independent invention. Nor would a trade secret on an organism be violated by reverse engineering or breeding that organism, as long as the organism was acquired in a legitimate way (by some other means than theft of trade secret). Thus using trade secret law to protect an engineered organism when that organism self-replicates true to type is not possible if one sells instances of that organism.

Trade secrecy law is thus one reason that plant breeders have focused their effort on developing hybrids that do not replicate true to type. Apparently, reverse engineering a hybridized organism to discover the nature of the parental stock is also not possible, and thus keeping their breeding techniques secret and selling hybridized seed is an effective way for plant breeders to protect their innovations without the protection of patents. Since reverse engineering living organisms may be more difficult than reverse engineering of most any other type of innovation, when the self-replication problem is overcome, trade secrets probably afford organism innovations with greater protection than they do any other type of innovation.

A major problem with trade secrecy from the perspective of the good of society is that this institution encourages non-disclosure of innovations. Such secrecy hinders the progress of science and technology, which depends on the free flow of knowledge and information. Trade secrecy constraints prohibit scientists from publishing results pertaining to the innovations held as trade secrets.

Thus another traditional rationale for patents is the “exchange for secrecy rationale.” Patents require enabling disclosure (that is, disclosure in such detail that a person skilled in the field could make the patented invention from a description of it available from the patent office). Hence one argument for patents is that they provide for public disclosure of the knowledge and technology behind innovations which would otherwise remain hidden through trade secrecy (perhaps in perpetuity, since unlike patents, protection for trade secrets is not of limited duration). In this way, patents appear preferable to trade secrets from society’s perspective. Thus one can argue that issuing patents to genetic innovators is justified as an exchange: for disclosing to society the knowledge involved in his innovation, the genetic engineer receives a limited monopoly to the innovation.

Assuming that there are strong reasons for society to protect trade secrets in the first place, this exchange for secrecy rationale for patents has some plausibility. It is not clear how effectively this argument can be applied to the justification of patents in biotechnology, however. According to some analysts, the enabling disclosure requirement for biotechnology patents has been significantly relaxed and weakened. Thus it is not clear that society is getting sufficient disclosure of new knowledge to justify the granting of patent rights in exchange.

The Consequentialist Incentive Argument

In my view, the ability to justify intellectual property, and hence the justifiability of patents in genetic innovations, turns on the question of whether creating and enforcing such property rights serves social goals better than do its alternatives. The previous section dealt with one such argument, the exchange for secrecy rationale.

The major consequentialist argument for patents in the results of genetic engineering is that such property rights are necessary incentives for the production and use of a socially optimal level of genetic innovations. If we want oil-degrading bacteria, drought, disease, and frost resistant crops, and leaner, cheaper pigs, then the best way to insure the development of these social goods as quickly as possible is to encourage genetically innovative activity by allowing the inventors to patent their innovations and to sell them in the market. Without such a return on their considerable investment of time, energy, and money, the argument goes, individuals and businesses engaged in this creative work would not have adequate incentive to perform it. Why develop drought resistant plants when, once one sells the plants to others, one has no protection against competitors breeding and selling the plants at a lower price, which need not reflect development costs? Whenever the costs of research and development are relatively high, while imitation costs are relatively low, this argument for patent protection will have some force. The idea is that over the long run we maximize the widespread use and availability of high quality genetic innovations by allowing short-term (17-year) restrictions on their use. Such restrictions, the argument claims, are the cheapest price society can pay to reap the fruits of such innovative activity. Although granting monopolies like patents may raise consumer prices in the short run, it will also stimulate the development of new products for consumers in the future. Additionally, competition may be enhanced by stimulating the production of product substitutes, and once the patent expires, prices will come down.

An alternative mechanism for developing and making available genetic innovations is to provide public funding for genetic research and engineering and to make freely available the results. This has the advantage of stimulating the innovative activity without granting anyone a right to restrict its diffusion to others, as do grants of monopoly rights like patents. Another benefit of public funding and development is that the public can then much more easily control what form the technology takes. This, I think, is especially important for socially, ethically, and environmentally significant technologies like genetic engineering.

The Federal Government once was the primary source of new plant and animal varieties, but increasingly we are relying on proprietary incentives. Molecular biologists are moving from the university to industry, and where they are not, corporate money is flowing into the universities, along with pressure to withhold research results. The openness and free flow of ideas so important to the development of knowledge is slowed by this atmosphere of safeguarding information in the hopes of making it proprietary. For example, commentators have argued that organism utility patents have slowed the free exchange of germplasm, plasmids, and cell lines. Publication of scientific results is being delayed until after patents are received, and scientific results concerning biotechnology innovations held as trade secrets are not being published at all. The domain of biology, once a public domain, is increasingly becoming another domain of private property.

I do not deny that there are drawbacks to public funding and dispersal of both theoretical and (especially) applied research. For example, it has a tendency to narrow the diversity of those making decisions about appropriate directions for research and technological development. But I think it is not obvious that it is an inferior way to provide for technological innovation.

Some will undoubtedly argue that the recent explosion in genetic innovations is due to the legal system’s finally allowing private property rights in these innovations. This is an empirical question about which the evidence speaks ambiguously. I think the reverse judgment is equally plausible, that the increase in proprietary protection is the result of the explosion in genetic innovations. With the advent of new methods of genetic engineering, the potential for significant social benefits from biotechnology has dramatically increased. Those involved, including corporate interests, have successfully pushed for the extension of legal property rights so they can profit from this new technology. Far from stimulating innovation, allowing patents on biotechnology may actually stimulate companies to put more energy into patent development and defense than into new innovation.

Costs of Patents in Genetic Innovations

Arguing in favor of patents for the results of genetic engineering on the grounds that they are the best way to stimulate genetic innovations assumes that society will benefit from the increased profusion of biotechnological products. But some environmentalists, ethicists, and analysts of the farming business deny that biotechnology is an unadulterated good. If the critics of biotechnology are right, then we may not want to indiscriminately stimulate this technology by granting broad and lucrative utility patents in genetic engineering.

Of course allowing patents in a particular type of technology does not rule out regulatory control of that technology. Issuing a patent in an innovation gives its owner a right to exclude others from using it, it does not give the owner any positive right to use it. Thus government regulation and control of biotechnology can go hand in hand with patents in biotechnology.

Although this point is theoretically sound, it does not make practical sense. Allowing patents in a particular technology signals that society is in favor of that technology and that it wants to encourage its development. Allowing patents in biotechnology will foster sentiments against regulating it. Commercial interests that have spent significant sums both on developing patentable biotechnologies and securing patents on them will exert considerable pressure on the government not to regulate their patented innovations. Given the current backlash against environmental regulations on the grounds that they involve government “taking” private property without just compensation, regulation of patented biotechnologies could come under the same legal attack.

The European experience is instructive on this point. The European Patent Convention prohibits patents for inventions deemed “contrary to the public order or morality” and it requires the patenting authority to do a cost-benefit analysis before issuing a patent. The analysis includes not only cost and benefits to humans, but also “the suffering of animals and possible risks to the environment.” Biotechnological innovations should undergo some such moral scrutiny before they are issued in our country as well.

Costs to Non-human Organisms

Are there costs of biotechnology to the engineered organisms themselves that we ought to consider? A clear potential cost of animal biotechnology is increased animal suffering. What is life like for on oncomouse, who has been constructed to develop cancer, or of the USDA engineered “Beltsville pig,” who is “bowlegged, cross-eyed, arthritic, and barely able to stand up?”

There are other dimensions beyond the suffering issue. For example, do we want to encourage the development of creatures such as cows that are as big as small elephants and whose mammary glands give off milk twenty-four hours a day? Whether such animals suffer is an important issue but by no means the only one. J. Baird Callicott has argued that the fundamental wrong of “factory farming” is not the suffering of the animal but the monstrous transformation of living beings into a mechanical-chemical-artifactual mode of existence. Note that this criticism of biotechnology applies not only to sentient animal life, but also to non-sentient animal and plant life. Genetically engineered square, rock-hard tomatoes that ripen only when put in the microwave may deserve a similar reaction of aesthetic and moral repugnance.

Risks of Release of Genetically Engineered Organisms

Consider, for example, the risks of large-scale release of genetically engineered organisms into the environment. To date there have been about 300 known releases, none of which has led to known adverse consequences. But consider a future in which thousands of such kinds of organisms are present in the environment. The worry is that natural systems may not have defenses and control mechanisms for genetically engineered organisms. Naturally evolved organisms are selected against if they are too destructive and harmful to their environments (since they depend on their environments). This natural check is not present for artificially created organisms and so there is a potential for massive negative environmental impacts from such organisms. The belief that we could control or contain whatever we have created is a kind of technological blind faith. Imagine trying to control microorganisms we have released into millions of acres of farmland. Just this year the Bush Administration rejected this argument claiming that genetically engineered products are not inherently dangerous and thus need no special oversight from the Government.

It is often claimed that releasing genetically engineered organisms into the environment is no more dangerous than is the importation of exotic plants and animals into non-native ecosystems. But the massive negative effects of exotics like Kudzu or Zebra Mussles makes this an argument for the opposite conclusion.

Herbicide Tolerance and the Divergence between Private and Public Good

Consider further the kind of incentive patents give to the agribusiness industry. It has been estimated that up to 50% of the industry’s resources spent on genetic engineering are aimed at producing herbicide resistant crops, rather than disease resistant crops. It should be no surprise that the highly vertically integrated agribusiness industry dominated by petroleum, chemical, and pharmaceutical multinational conglomerates would put most of its energies into genetically engineering crops to withstand the chemicals it sells.

Biotechnology may thus undermine a laudable recent trend toward organic farming and further entrench the chemical approach to agriculture. More ecologically sound genetic engineering like creating nitrogen-fixing cereals (that reduce the need for fertilizers) and other less profitable research such as developing stress-resistant rice (mainly a third world crop) are frequently left to the public sector. Another drawback of patents is illuminated by the worry that fertilizer companies will buy up patents for genetically engineered nitrogen fixing crops and sit on them in order to protect their market for fertilizers.

Once patents are the means by which we stimulate genetic research, this research will serve the purpose of private gain whether or not this coincides with the public interest. At the very least we should not allow the patenting of genetic innovations when they are deemed to be contrary to the public good.

Distributive Justice

Many predict that the patenting of genetic innovations will further squeeze farmers and increase the power of giant agribusiness conglomerates. One critic suggested the farmer is on his way to becoming “the tender of genes owned by someone else.” That plant utility patents prohibit farmers from using seeds from the very crops that they have grown seems incredibly wasteful and is as absurd as if software companies insisted that a program they sell may only be used once. This is a significant restriction given that almost 50% of wheat and soybeans crops are grown from farmer-saved seeds.

Another unjust trend dependent on patenting genetic innovations is the free collection of genetic material from both wild and cultivated plants in Third World countries. This material is then genetically manipulated and patents are taken out on the results. The newly engineered organisms are then sold back to farmers in the Third World countries from which they were originally obtained. A kind of “genetic imperialism,” this practice instantiates the view that all value is created in the recombination of genes, and that until this takes place, genetic material is worthless and thus free for everyone to take.

Conclusion

Given these concerns about the legitimacy and social wisdom of patenting life forms, assimilating the results of bioengineering to traditional inventions by including them under the utility patent system is, in my mind, a bad idea. It hides the moral issues from us and helps us ignore the profound significance and effects of this new technology. It encourages us to think of living organisms, the fundamental instructions of living organisms, and even life itself as human inventions. It has us socially organize ourselves with respect to new living things as we do with respect to any other new gadget: we issue a patent.

Genetic engineering has dimensions and effects far more profound than other recent technologies that our traditional intellectual property institutions have been stretched to cover. We may be able to extend these institutions to include new computer technologies by allowing the patenting of algorithms or the copyrighting of the “look and feel” of computer programs. But doing the same for the results of the biotechnology revolution is a far more serious step. For one thing, the sector affected, namely the farming community, is an established way of life and not a new business in which the players are just emerging and where we can create the social and institutional structures from scratch. How we shape the property institutions that define the agricultural sector will have a dramatic effect on American farmers and peasants throughout the world. Since it is the institution, which supplies human nourishment, agriculture is probably the most significant practical way that we relate to the land. How we define, conceptualize, and structure our relationship to the land is therefore of central moral and practical significance.

Technology is a lens through which we see the world and biotechnology (both traditional and new) has the power to change our understanding of ourselves, of the natural world, and of our place in it. It is not simply another type of mechanical or chemical creation aimed at making the world better for us. In this instance, we are not simply reshaping matter, but are harnessing life. By manipulating life and natural evolution, we are taking the process that shaped our existence and that of every other living organism on the planet and restructuring it for our own benefit.

I am not arguing that we should cease research into or use of genetic technologies, or that there is no need to think about a balance between private incentives and public funding for genetic engineering. But it does us a great disservice to assimilate how we understand and relate to such a significant technology to the legal approach with which we understand invented mechanical devices or chemical compounds. Doing so shields us from the social, ethical, and environmental issues involved. It is a manifestation of human arrogance and shows disrespect for the life processes from which we originated. We ought not to treat genetically altered living organisms and materials as simply another class of human inventions patentable under the same rules and justifications as any other.