<nettime> Bio-IPR at a Crossroads

[Soenke Zehle <soenke.zehle@web.de>]

One comment on the indigenous peoples & IPR - exchange:

There actually is a complex "open source" debate/community in the area of
biodiversity, especially about the status of plant genetic resources
(seeds/germplasm). One initiative is called the "Treaty for a Genetic
Commons." Main advocate: Jeremy Rifkin & his foundation for economic
trends (I think that's what it's called), which has been challenging
bio-patents for decades, ever since the "oil-guzzling" microbe - see below
- made its momentous appearance.

International agricultural research centers (IARCs) established as public
service centers during the Green Revolution are another important
ecopolitical arena - there's been controversy over the extent of a "public
domain" of seeds/crops freely available for public (especially 3rd world)
research -direct tie-in to issues of globalization, food security, human
rights - you name it.

I think that the struggle over the proprietarization of "biological
resources" (a major engine of the expansion of the global IPR-regime)
constitutes a crucial biopolitical/ecopolitical terrain. Recent
peasant/indigenous demonstrations (organizers: Vandana Shiva et al), to
take one example, have far outnumbered the "people of Seattle" which have
remained at the center of attention of much current
globalization-theorization (_Empire_ as case in point). S/Z

Monday, March 25th, 2002 Patenting Elements of Nature: No Patents on
Non-Life Either!


Governments at the UN are meeting this week to prepare for a painful
evaluation of "Agenda 21", the environmental work plan that came out of
the Earth Summit ten years ago. Among the issues on the New York agenda
will be biotechnology, Terminator technology, and "life" patent
monopolies. Meanwhile, unnoticed by policy-makers, the nanotech industry
is acquiring the same broad-spectrum patents that have spurred monopoly in
biotechnology. Patenting at the nano-scale can mean monopolizing the basic
elements that make life possible. Could nanotechnologists patent elements
in the Periodic Table? It wouldn't be the first time!

What is nanotechnology? A nano is a measurement equaling one-billionth of
a meter. Nanotechnology is a very broad term referring to an array of
technologies encompassing everything from the manufacture of nano-scale
materials (the commercial manufacture of bulk sprays, powders and coatings
is already big business), to the fabrication of structures utilizing the
quantum physics of nano-scale materials, to the futuristic and hotly
debated goal of creating self-replicating nano-robots. Some argue that
self-replicating nano-machinery is beyond the realm of possibility while
others, including ETC group, believe that the real question is not if, but
when. It is clear that every industry and technology will be affected by
nanotechnology in the future. ETC group is completing a kit for civil
society organizations and policy makers on nanotechnology for release in
April/May.
 
Summit plans miss mark: Two weeks of meetings begin at the United Nations
today to prepare for the World Summit on Sustainable Development (WSSD).
The Heads of State summit, scheduled for Johannesburg, South Africa (Aug.
26 - Sept. 4) will review the embarrassing lack of progress in achieving a
sustainable environment and economy since the 1992 "Earth Summit" in Rio
de Janeiro. In the ten years since Rio, governments and civil society
activists have seen biotechnology and intellectual property move from the
wings to centre stage in debates over world food and environmental
security. The New York negotiations will talk about both "life" patent
monopolies and the risks involved in GM crop contamination. Governments
have neither nanotechnology nor material patents on their agenda. As
usual, they are running a decade behind reality.

>From "life" patenting to ...? The starting gun for the privatization of
what eventually became known as biotechnology went off in 1980 when the US
Supreme Court decided, in a 5-4 decision, that an oil-guzzling microbe
developed by General Electric was patentable. The US court's verdict
signaled to the chemical and pharmaceutical industries that the world's
most commercially important patent regime was open to patenting any and
all forms of life.

Two decades later, many patent attorneys would concede that "life" patents
are in chaos. Forty-six percent of all biotech patents challenged in US
courts are overturned. At an average cost, per litigant, of $1.5 million,
patent lawsuits are the fastest growing item on court dockets in the USA
and many start-up biotech "boutiques" now allocate more money to
intellectual property lawyers than to their scientists. (See ETC
Communique #73, "New Enclosures", November/December, 2001.)i
 
That even the Gene Giants are finding patents painful gives civil society
organizations small solace. CSOs (including some environmentalists who sat
on their hands in 1980 because they were persuaded that the patented
oil-eating microbe would combat oil spills - it never did) have watched in
horror as the scope of biotech patents has exploded beyond all
recognition. Twenty years down the road, there are patents on genes, gene
sequences, entire species, on human cell lines and on indigenous
knowledge. Patents have been granted to companies for uses that have been
known for thousands of years and biopirates are laying claim to so-called
"inventions" they scooped up from farmers' markets and rain forests. The
thievery has become a global pandemic.

Patents on Non-Life: But biotech's critics have become so focused on the
"no patents on life" campaign (a campaign to which ETC group fully
subscribes) that all of us have overlooked the patents "underneath". The
fast-moving nanotechnology industry is busily acquiring patents on the
material building blocks and processes that make everything from dams to
DNA. Because nanotech spends little time talking about living materials,
few have realized the implications for health, agriculture and the
environment if fundamental patents on nature's raw materials go unopposed.

>From bio to nano: In a speech last April, a lobbyist with the US
Biotechnology Industry Organization (BIO) , ventured boldly onto the turf
of the Gene Giant's nano neighbours: "It is true that one cannot patent an
element found in its natural form; however," said Lila Feisee, "if you
create a purified form of it that has industrial uses - say, neon - you
can certainly secure a patent."ii Feisee, BIO's Director for Government
Relations and Intellectual Property, should know. The biotech industry has
turned the isolation and purification of known genes (for the purpose of
patenting) into an art form.
 
"Elements, my dear Watson ... and Crick": Of the roughly 112 known
elements so far (a handful come and go or are in dispute), 22 elements are
human-made. There will be more. Are they patentable? Glenn Seaborg, the
American who won a Nobel Prize for Physics in 1951, couldn't see why not.
He "invented" Americium #95 and acquired US patent #3,156,523 on November
10th, 1964. Seaborg's decision to patent contrasts with the explicit
choice made by Pierre and Marie Curie of France: they opted not to patent
Radium #88 or Polonium #84. For their selfless decision, the Curies were
awarded the Davy Medal by London's Royal Society 99 years ago. Ironically,
Seaborg marked the Curie's stand by naming his second "invented" element,
Curium #96, after them - U.S. patent # 3,161,462 granted December 15th,
1964. Years after their initial discovery of Radium, Marie Curie reflected
on the "fortune" she and her husband sacrificed to keep the element in the
public domain. "Yet," the Nobel Laureate concluded, "I still believe that
we have done right."iii

Sure enough, there exists a general doctrine in patent law that products
of nature cannot be patented. The prohibition on product of nature patents
was rendered vacuous by the 1980 Supreme Court decision. Today, with the
world's largest corporations gearing up to work down at the nano-level, it
is only a matter of time before industry convinces patent examiners that
the genetically-engineered microbe of twenty-two years ago is no different
from the atomically-engineered elements of today. Between nuclear
colliders, atomic force microscopes, and cameras that can photograph light
as it meanders through a retina, the nanotech industry will be in a
political position to argue that any tinkering with the elemental products
of nature is patent-worthy.

Little patents with a giant reach: But nanotech is also following
biotech's passion for sweeping product and process patent claims that
could tie up the technologies involved and give a handful of giants
monopoly over the tools that will be used to manufacture everything.
Everything includes the raw materials essential to life.

Buckyballs: Consider C Sixty Inc., a Toronto, Canada-based start-up
nanotech enterprise, that seems to be rapidly cornering the market on a
rare form of carbon first discovered in 1985.iv Carbon is an essential
component to everything living on earth. This remarkable carbon was named
"Buckminsterfullerene" (or "Fullerene" or "Buckyball") because of its
geodesic (soccer ball) shape.v Essentially, buckyballs are a hollow sphere
comprised of 60 carbon atoms. By the mid-90s, fullerene compounds were
seen to have vast potential in drug delivery related to the treatment of
disease. A series of patents was filed, five of which have been granted.
The patents are the core assets of C Sixty Inc. As Uri Sagman, C Sixty's
CEO told NanotechPlanet, "If people want to get in this game they have to
deal with us." Sagman stresses, "We're, in a true sense, a platform
company that is able to license out enabling technology and partner [with
other drug development companies]"vi

Buckytubes: C Sixty Inc. is not alone in exploiting carbon. Carbon
Nanotechnology Inc. (CNI - Houston, Texas) has an exclusive license for a
broad array of technologies developed by Dr. Rick Smalley at Rice
University. Smalley, too, won a Nobel Prize for Physics and co-founded CNI
on the side. The existing patents (and applications) cover the four
commercially viable routes to making and using - not Buckyballs but
Buckytubes (nanotubes). Nano-scale tubes of carbon atoms have an enormous
range of pharmaceutical and other uses. Buckytubes are the most important
material in nanotechnology today.vii

Blocking the view: Not all the nanotech work is on carbon atoms.
Microvision, another U.S. "nano-niche" (the nano industry's equivalent to
biotech's "boutiques") start-up in Bothel, Washington, uses nano-scale
technologies for visual display and image capture devices. So far, the
company claims more than 150 patents but many more are in the pipeline.
Steve Willey, executive vice president told Small Times, "At some point
you corner an industry. ... There is value in getting critical mass."
Casey Tegreene, who handles the company's patents, agrees, "Building an
unassailable patent portfolio is an important component of our overall
growth strategy...''viii

Chips off a new block: Nanotechnology is also making huge inroads into the
informatics industry and much work is being done with nano-scale materials
for semiconductors. One of the lead "nano-nichers" in this field is
Quantum Dot Corporation (Hayward, California). QDC is the world leader in
nanocrystal technology commercialization for use in biological,
biochemical, and biomedical applications. The company's strategy is to
achieve broad-spectrum coverage of semiconductor nanocrystal technologies.
"We continue to dedicate our efforts to compiling, generating, and
protecting pioneering technology...," QDC states.ix

As it was with the biotech "boutiques", however, nanotech's "nano-nichers"
are going to have to scramble to win patent dominance in manufacture. QDC
is rubbing elbows with giants like Hewlett-Packard in the semiconductors
market and H-P is working in a consortium to develop molecular switches
and other nano-scale materials that could transform the informatics
industry quickly. One of its molecular patents was ranked by MIT's
Technology Review as among the five most important patents of 2000. As is
increasingly the case, many of the nanotech initiatives are being
bankrolled by the US Defense Advanced Research Projects Agency (DARPA).x
 
Patently worried: "Our big issues are making sure that the USPTO [US
Patent and Trademark Office] understands nanotechnology, so when people
come with their patents, examiners understand what are reasonable
boundaries," says Mark Modzelewski, of the NanoBusiness Alliance (a New
York-headquartered industry trade association). "We would not like to see,
within nanotechnology patents, some of the things we've seen in recent
technology waves, where there have been concept patents awarded, which
allow people to lock up huge areas. That's a real fear for us in
nanotechnology."xi

Those of us in advocacy groups and others in civil society who have been
concerned about GMOs and "life" patents may still regard the sudden rise
of nanotechnology as extraneous to our main concerns. Not for long.
According to the NanoBusiness Alliance, nearly half of the pharmaceutical
industry market (or around $180 billion per annum) will be based on
nanotechnology within 15 years. NBA believes that 22% of the potential
business for nanotech will be linked to biotechnology in the life
sciences.xii A market study just released by CMP Cientifica (an investment
group in Madrid, Spain) sees agriculture as next in line after medicine as
a potential market for nanotech: "...genetic engineering methods are
moving along quite nicely without any need to call themselves
nanotechnology."xiii Likewise, nanotech is progressing quite nicely
without any need to tell the world that it is tinkering with the
fundamentals of all life and matter.

Perhaps the best opportunity for governments and civil society to come to
grips with new technologies such as nanotech and new monopoly control
threats such as patents on elements in the Periodic Table, will be during
the Johannesburg Summit this August. Among the proposals that should be
debated by governments in New York this week and next is an International
Convention for the Evaluation of New Technologies (ICENT).


For further information:
Pat Roy Mooney: etc@etcgroup.org (204) 453-5259 CST - Winnipeg
Hope Shand: hope@etcgroup.org (919) 960-5223 EST - North Carolina
Silvia Ribeiro: silvia@etcgroup.org (52) 55-55-63-26-64 CST - Mexico City
The Action Group on Erosion, Technology and Concentration, formerly RAFI, is
an international civil society organization headquartered in Canada. The ETC
group is dedicated to the advancement of cultural and ecological diversity
and human rights. www.etcgroup.org. ETC group wishes to acknowledge and
thank Mathieu Charron, a valued volunteer, for his considerable contribution
to the research involved in this report.

Endnotes:
i See ETC group website: http://www.etcgroup.org/article.asp?newsid=271.
ii Lila Feisee, Director for Government Relations and Intellectual Property,
Biotechnology Industry Organization, in a speech entitled, "Anything Under
the Sun Made by Man," delivered at Case Western Reserve School of Law, April
11, 2001.
iii For more information, see:
http://physics.nist.gov/GenInt/Curie/1921.html. Marie Curie made her speech
in the USA in 1921 on a fundraising trip for her Radium institute.
iv See CSixty's website: www.csixty.com/mission.
v Buckminster Fuller, an engineer and architect who died in 1983, promoted
the geodesic dome as the ideal design for shelter construction.
vi B. Allen, "CSixty pioneers drug delivery techniques using buckyballs,"
NanotechPlanet, January 16, 2002; available at www.nanotech-planet.com.
vii "Carbon Nanotechnologies, Inc. licenses buckytube production process to
DuPont," NanotechPlanet, January 9, 2002, available at
www.nanotech-planet.com; see also Carbon Nanotechnologies Inc.'s website:
www.cnanotech.com/4-2_intellectual.cfm.
viii J. McIntyre, "Microvision piles up patents in retinal display
technology" Small Times, February 20, 2002; available at www.smalltimes.com.
ix From Quantum Dot's company website, www.qdots.com/new/corporate/ip.html.
x Hewlett-Packard news release, "GP, UCLA collaboration receives key
molecular electronics patent", January 23, 2002; available at
www.hp.com/hpinfo/newsroom/press/23jan02b.htm.
xi D. Brown, "U.S. Patent examiners may not know enough about nanotech,"
Small Times, February 4, 2002, www.smalltimes.com.
xii N. Tinker, 2001 Business of Nanotech Survey, NanoBusiness Alliance,
October 2001, p.16.
xiii CMP Cientifica, March 11, 2002, p.23. www.CMP-Cientifica.com






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