[Nettime-bold] 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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