Genetics is increasingly being presented to the American public as a
mysterious realm of knowledge which is now coming under human control,
presumably for our economic and social betterment. “We used to think our
fate was in the stars. Now we know, in large measure, our fate is in our
genes,” is the way this ideology has been formulated by James Watson, the
Nobel laureate who participated in the discovery of the DNA double helix.
This world view-which magnifies the claims to power by scientists and is
trumpeted in the media-ignores the complex interactions within an organism
and between an organism and its environment, as well as the social and
political and economic factors that contribute to shaping life patterns.

But the biotechnology industry has succeeded in presenting itself as the
next shining hope for America’s economic development (along with
infomatics-the computer/information industry). Together with other high
tech industries, it has succeeded in making some substantial alterations in
public consciousness, laws, and programs which directly benefit its own
interest.

Despite the fact that Thomas Jefferson was the master of a large plantation
and thus a breeder of plants and animals (as well as being a scientist and
inventor himself), there’s no reason to believe that when he drafted
America’s first Patent Act in 1793 that he intended it to cover life forms.
Jefferson was quite clear, however, that he viewed the concept of patent
monopolies as a necessary evil which could be tolerated in order to insure
that “ingenuity should receive a liberal encouragement.” Patents were also
intended to foster the widespread dissemination of technical information
which is “new” and “useful” and “not obvious” to practitioners in the
field.

There has always been a recognized public policy exemption to patentability
(for example, nuclear devices are not patentable, under the Atomic Energy
Act of 1954). But for almost 200 years the idea that general patents could
cover life forms was viewed as ridiculous; indeed, Congress refused to
include coverage for plant varieties under these statutes and enacted
specific (and much more limited) protection schemes for new plant varieties
in mid-20th-century. The ideology of geneticization changed this tradition.

In 1971, the General Electric Corporation and one of its scientists, Anand
Chakrabarty, filed a patent application for bacteria which had an enhanced
propensity to digest oil hydrocarbons. Although getting bugs to eat oil
seems like a neat trick, the Patent Office initially rejected the
application. The case was appealed to the courts. The Supreme Court had
recently issued an opinion noting that “we must proceed cautiously when we
are asked to extend patent rights into areas wholly unforeseen by
Congress.” However, it ruled in 1980, in a 5 to 4 opinion by Chief Justice
Warren Burger, that the oil-eating microbe was not a product of nature but
a “human-made invention.” Whether it was alive or inanimate was not seen
as the major criterion. The dissent by Justice Brennan, urged judicial
restraint and noted that it was up to Congress, not the courts, to decide
whether the scope of patentable matter should be extended.

All nine of the justices agreed that this was a narrow ruling, and the
commentators were also essentially unanimous in the view that patentability
of microbes might be one thing but monopolizing plants and animals (no one
was even thinking of humans at that time) was beyond the pale.

With no further guidance from Congress or the courts, the US Patent Office
has run off on its own expanding the Chakrabarty ruling in many
directions. In 1985, it decided that plants, seeds, and plant tissues
could be patentable, and in 1987 all “multi cellular living organisms,
including animals” were held patentable (this last ruling by the Patent
Commissioner, by specifically excluding human beings from patentability,
did acknowledge that there was an ethical issue involved in the patenting
of life). The Thirteenth Amendment (outlawing slavery) may be seen as a
bar to the patenting of humans; nonetheless embryos and fetuses and human
body parts all appear capable of being monopolized under these Patent
Office rulings. And now there are even attempts to patent whole human
beings and their genomes.


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