Information About Intellectual Property Rights No. 7
January 1995

Patenting Of Life and Its Implications For Indigenous Peoples

by Debra Harry, Northern Paiute Nation, Nevada

Though it seems like science fiction in the minds of most people,
genetic engineering is a current reality and is common practice in
laboratories around the world. "With genetic engineering technology
today, it is possible to manipulate the 'blueprints' of living
organisms...to isolate, splice, insert, rearrange, recombine and mass-
reproduce genes."1

Scientists are capable of reprogramming the genetic codes of living
things to suit societal or economic purposes. Transgenic experiments
mix plant genome with that of animals, human genome with that of
plants or animals. Does anyone have a right to own a life form or to
commodify parts of the human body for profits? The ethical and
legal questions raised by genetic engineering technology are
numerous and unanswered. This area of biotechnology remains
virtually unregulated.

Patent law is the primary vehicle which enables scientists to secure
exclusive rights to the commercial benefits of their genetic research.
Patent laws grant a limited property right to the patent holder, and
exclude others from using the patented item for a specific period of
time, usually for a 17-20 year period. Patents are usually granted for
newly created inventions, as a means of recognizing the scientist's
"intellectual property rights."

There has been a disturbing trend in patent law that extends patent
protection to life forms since 1980 when the U.S. Supreme Court
ruled that the creation of an oil-eating microbe is patentable.2 Since
then, the U.S. Patent and Trademark Office (PTO) has granted
numerous patents for newly created micro-organisms, living animals,
and for human tissues and genes, breaking long-standing policy that
animate life forms were not patentable.

In 1994, negotiators of the Uruguay Round agreement of the GATT
established global rules requiring member nations to award bio-
engineers exclusive rights to monopolize the development and
commercialization of "plant varieties either by patents or by an
effective sui generis system..."3 ("Sui generis" is a Latin phrase
meaning "of like kind.") Governments that choose to ensure that the
benefits of genetically-manipulated plants accrue to the public may
be subject to challenge in the GATT's system of dispute resolution.
This "TRIPs" chapter of the GATT - which stands for "Trade-Related
Intellectual Property Rights" - must be reviewed in 1999.

Patenting Human Cell Lines
Putting questions of inventiveness aside, these trends have enabled
scientists to hold patents for a wide variety of life forms, including
almost 5% of the entire human genome. There is now a rush for
control of the remaining 95% of the human genome.

In 1993, a patent claim was filed under the name of U.S. Secretary
of Commerce Ron Brown, on the cell line of a 26 year old Guayami
woman from Panama. Patent Claim WO 9208784 A1 was lodged for
the Human T-Lymphotropic Virus Type 2, drawn from the
"immortalized" DNA of the Guayami woman. Her cell line is of
interest because some Guayami people carry a unique virus and
whose antibodies may prove useful in AIDS and leukemia research.
International protest and action by the Guaymi General Congress and
others led to the withdrawal of the patent claim in November 1993.

On behalf of the U.S. Department of Commerce, Secretary Ron Brown
filed patent claims on the human cell lines of indigenous people from
the Solomon Islands.4 The Government of the Solomon Islands has
demanded the withdrawal of the patent applications citing an
invasion of sovereignty, lack of informed consent, and moral grounds
as the reasons for protest. The Government of the Solomon Islands
also demanded the repatriation of the genetic samples. However, in a
response letter dated March 3, 1994 to the Ambassador of the
Solomon Islands, Secretary Ron Brown states "there is no provision
for considerations related to the source of the cells that may be the
subject of a patent application." In other words, how the genetic
samples were obtained is of no legal concern to him, in accordance
with existing patent laws.

"Bio-Prospecting"
The Human Genome Diversity (HGD) Project is taking blood and tissue
samples from indigenous peoples of 722 communities throughout the
world for genetic studies.5 This raises troubling questions regarding
the definition of genetic materials as "property", the ownership of the
genetic samples themselves, and who stands to profit from the
commercialization of products derived from the samples. The HGD
Project puts the raw resource, that is, the human genes of indigenous
people, in the hands of anyone who wants to experiment with them.
In doing so, the HGD Project is opening the doorway for widespread
commercialization and potential misuse of the samples and data.
While the HGD Project does not plan to do genetic engineering, no
safeguards exist to prevent others from doing so with the genetic
samples collected.

It appears the colonizers, this time as well-funded and equipped
"bio-prospectors", have their eyes on appropriating the natural
resources of indigenous people to benefit those in the developed
world. The HGD Project enables the staking of claims on the natural
genetic resource base of indigenous peoples. Some of those claims
will strike it rich, in the form of patentable genes. The research,
manipulation and inevitable commercialization of the genetic data or
samples will benefit those who can afford it, and the developers and
investors who commercialize it. There will be minimal or no direct
benefit to the people from which the natural resource is taken.

The HGD Project suggets that contract law is one way for indigenous
peoples to protect their intellectual property rights, and to maintain
control over the use of the genetic samples. Given the lack of any
international policies or regulations governing the trade of human
genetic materials, contracts may well afford the best legal protections
and tool for defining the terms of exchange. However, indigenous
peoples must be reminded that previous experience with contract
law, treaties and other legal agreements have afforded negligible
protection in the past, particularly on the domestic levels.
International enforcement and monitoring of these agreements or
contracts would most likely prove much more difficult.

The Case of John Moore
In 1984, John Moore filed a lawsuit claiming that his blood cells were
misappropriated while he was undergoing treatment for leukemia at
the University of California, Los Angeles Medical Center.6 During his
treatment, Moore's doctor developed a cell line which proved
valuable in fighting bacteria and cancer. The UCLA Board of Regents
filed a patent claim on this cell line and commercially developed
valuable antibacterial and cancer-fighting pharmaceuticals. Moore
claimed that he was entitled to share in profits derived from
commercial uses of these cells and any other products resulting from
research on any of his biological materials.1 In a significant 1990
California Supreme Court decision, the court established that a donor
does not have a "property right" in the tissues removed from his or
her body.7 The court further reasoned that to favor John Moore's
claim would "...hinder research by restricting access to the necessary
raw materials," thereby interfering with the progress of science.8

Indigenous people must be aware that it may be extremely difficult
or impossible to recover or repatriate the genetic samples, our blood,
tissues, or body parts, once they are removed from our bodies and
are out of our control.

Recommendations
Indigenous people must call for a world-wide moratorium on the
collection, databasing, manipulation, and commercialization of human
cell lines and their genetic resources.

Indigenous peoples need to determine the extent of existing
international protections for genetic resources, and participate in the
development of international policies which fully protect the
resources of indigenous peoples from further theft, appropriation
and exploitation.

Indigenous peoples must assert their sovereign right to manage and
protect their peoples, resources and knowledge, as stewards of their
territories and their people's future generations, and these rights
must be respected and protected by non-indigenous peoples and
nations as ethically, legally and morally correct.

Intellectual property rights represent Western notions that one can
have "ownership and property right(s)" extended to all facets of the
natural world. Western laws are paradoxical to Indigenous
cosmologies which revere the sanctity of all life, and mandate human
responsibility to serve as stewards, not owners, of the natural world.
The infringement of Western law on indigenous peoples over the
past few hundred years has created a complex political and legal
framework of existence for indigenous peoples. However, it is
important to remember that, most fundamentally, indigenous
peoples inherently have full rights and authority to control and
manage their own natural resources and internal affairs, free from
external interference and control.

Sources:

1 Kimbrell, Andrew, The Human Body Shop: The Marketing and
Engineering of Life. San Francisco: Harper, 1994.

2 Diamond v. Chakrabarty, 477 U.S. 303 (1980).

3 Uruguay Round Final Act. Marrakesh, Morroocco. (April 15, 1994).

4Publication Number WO-9215325-A, Priority Application No. US-
052368 .

5 "Patents, Indigenous Peoples, and Human Genetic Diversity," RAFI
Communique, Rural Advancement Foundation International, Ottawa,
Canada. (May 1993).

6 New Developments in Biotechnology: Ownership of Human Tissues
and Cells, Office of Technology Assessment, PB87-207536. (March
1987).

7 Moore v. Regents of the University of California et al., California
Supreme Court. (1985).

8 Moore vs. Regents of the University of California, 793 P.2d 479,
271 Cal . Rptr. 146 (1990).

One in a series of info sheets on Intellectual Property Rights available
from the Institute for Agriculture and Trade Policy - www.iatp.org

See IPR Info Sheet #6 "The Human Genome
Diversity Project and Its Implications for
Indigenous Peoples" also by Debra Harry.