enough freedom to improve upon what already existed in the commons of ideas and to develop the Internet from the ground up.
Building the Web was done with the participation of thousands of creators and innovators who had no guarantee that their innovations would be rewarded. Many of those people were indirectly compensated for their creativity because of the economic opportunities that the Internet opened. Not only did they benefit, society benefited. The Internet of today would not exist if five, ten, fifteen years ago overzealous software companies such as Microsoft tried to restrict access to their proprietary information the way they do now.23
PATENTLY ABSURD
The public domain, a commons that anyone can freely draw from, runs counter to the guiding ideology of our hyper-commercialized, free-market age. The dynamic of privatization is an overpowering one. Much of what we hear from the mainstream news media is a coded neoliberalist message that says everything should be up for sale, including our genetic heritage: our bodies, our selves. The pressure to pin down every gene and place it in a locked safe has fundamentally altered the long-standing scientific norms of sharing and openness in the field of genetics, replacing them with secrecy and closure. This has eroded the scientific commons of genetic information, and many insiders have argued it has made it more difficult for researchers to do their scientific work.
The existence of a commons encourages creativity and innova-
tion in both art and science, because this kind of openness allows people to build on others’ discoveries or creations. As Sir Isaac Newton put it three centuries ago, “If I see further, it is because I stand on the shoulders of giants.” But the shrinkage of the genetic commons increases the need to obtain permission from patent
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owners if a researcher wants to use certain privately “owned” genes.
Similarly, rather than being able to freely draw from melodies and lyrics, as Woody Guthrie did, today’s musicians have to get the consent of song publishers before they can alter a folk song such as
“This Land Is Your Land.” In both cases, the creative process is bureaucratized and monetized, lowering the chances of the kinds of accidental epiphanies that occur when we have more freedom to experiment—musically or scientifically.
Today, in the field of genetics, the idea of an open scientific commons where knowledge is freely shared almost seems quaint rather than something that was central to Western science for centuries.
Noted microbiologist Emmanuel Epstein says, “In the past it was the most natural thing in the world for colleagues to swap ideas on the spur of the moment, to share the latest findings hot off the scin-tillation counter or the electrophoresis cell, to show each other early drafts of papers, and in other such ways to act as companions in zealous research.” Now, he says, simply, “no more.” The logic of privatization has fundamentally transformed legal and philosophical assumptions about human life, converting it into a product—an immensely profitable one. This has created a significant shift in the way we think about our world, where life has been transformed (or reduced, depending on your point of view) to commodified information. As Monsanto CEO Robert Shapiro obliquely put it, “information” was replacing “stuff.”24
I’m often asked, “How can you patent a gene?” For some, it
doesn’t seem to make sense, but it’s not completely illogical. To put it another way, gene patenting is based on its own kind of logic. But before you can understand how genetic material can be owned, it’s important to know what it is, so here’s a crash course. DNA is a device that stores information, like the hard drive of a computer, and within the DNA molecule are individual units called genes. DNA’s double-helix structure is like a long, twisted ladder that can be McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 38
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composed of thousands of base pairs of nucleotides. These nu-
cleotides are known as letters: specifically, A, T, C, and G. A chromosome is a long piece of DNA that can contain as little as one gene, or thousands of genes, depending on the complexity of the organism.
And a genome is the sum total of all that is needed to build a living being.
To recap: chains of nucleotide molecules create DNA, which
contain multiple genes, which make up chromosomes, which make up a genome. Think of a genome as an encyclopedia that has multiple volumes (chromosomes), each volume has several thousand
terms (genes), and the definitions of those terms are written in an alphabet that only contains the letters A, T, C and G. This is why the genome is often referred to as “the book of life,” but rather than being copyrighted as a Stephen King novel would be, genes fall under patent law. To return to the computer analogy, you can fit all the information contained in a human genome (all the data necessary to create you) on a compact disc. The human genome contains 1.5 ×
109 bytes of information, which is roughly the same amount contained in a seventy-five-minute hip-hop CD by Snoop Dogg.
Much like computer software, genetic information is “pro-
grammed” to stimulate the production of proteins, which is facilitated by RNA— a close relative of DNA that only has one strand of nucleotides. RNA is transcribed from the DNA, creating a messen-ger RNA, or mRNA. This is known as a transcript because it carries a copy of a section of DNA that can assemble amino acids into proteins (much like how information is sent via e-mail). Following this metaphor of communication, it’s in this transcription that a gene is
“expressed” (the gene “tells” the mRNA to build a protein that tells the cell to do stuff).
Genetic expression occurs when molecules obey physical forces, similar to the way electrical impulses sent to speakers re-create mu-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 39
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sic. Think of the gene in charge of producing the growth hormone protein as being like an MP3 file that contains Snoop Dogg’s “Gin & Juice.” The data contained in the MP3 file triggers the software program that translates the 1’s and 0’s into something recognizable.
The computer sends an electronic signal to your speakers, which hurtles sound waves through the air, which vibrates in your ear so that you can hear Snoop rap, “It’s kinda hard bein’ Snoop
D-O-double-G / but I, somehow, someway, keep comin’ up with
funky-ass shit every single day.” In much the same way, the gene directs the growth hormone protein to initiate a cascade of signals that produces cell growth and division, which results in a gain in height and weight. Information, whether it’s stored in an MP3 file or a gene, directly creates a physical response.
Incorrect recording can result in problems. The mere substitution of a T for an A in one particular gene causes sickle-cell anemia, for instance. In addition, genetic information is conveyed not just in the order of letters, but also how the letters are spaced out. For the sake of argument, let’s say that the gene that controls the growth hormone protein might contain the following letters—CTAGG repeated—organized like this: CTAGG, CTA, GGCT, AGG, CTAGG,
CTAG, GCTAGG. Information is embedded not just in the ordering of letters, but also in the spacing (just as the timing of a joke’s punch line, the pause, makes all the difference in the world). There’s a huge difference between “notjustintheorderingoflettersbutalsoin-thespacing” and “not just in the ordering of letters but also in the spacing” and “no tj us tint he or de ring of let ters bu tals ointh es pacing.”25 If this gene were a rapper, then MC DNA might bust something like, “It’s kinda hard bein’ the C(noop) T A double G /
but somehow, someway, I keep comin’ up with funky-ass growth
hormone proteins every single day.”
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genes themselves (as they exist in nature, in our bodies). They are instead patenting “isolated and purified” DNA sequences or syn-thetic analogs. This means the DNA sequence is removed from its original biological context to trigger the creation of therapeutic proteins, or other such things, much like chemical compounds are invented in the laboratory. The problem with this logic is that DNA sequences look more like pure information than invented physical compounds, and control of that patented information can limit others’ ability to create medicines and therapies. “At the moment,”
argues Nobel Prize–winning geneticist John Sulston in his memoir The Common Thread, “the practice of granting biological patents is not heeding the distinction between discovery and invention.” Despite the fact that companies say they don’t technically own a gene, they have de facto control over the way that gene’s sequence can be used—which is only a slight rhetorical distance from actual ownership.
PRIVATIZING LIFE
Because of a landmark Supreme Court case and congressional legislation, 1980 was a pivotal year for genetic research. In the Diamond v. Chakrabarty decision, a five-to-four majority ruled that a living, genetically altered microorganism could be patented under U.S. law. Previous to this ruling, it was the policy of the U.S. Patent and Trademark Office (PTO) that living organisms—in the case of Diamond v. Chakrabarty, a bacterium that helped clean oil spills—
could not be patented. But the Supreme Court ruled otherwise, stating that “anything under the sun that is made by the hand of man” is patentable subject matter. That same year, Congress passed the Bayh-Dole Act to encourage the commercialization of inventions produced by universities and other recipients of federal fund-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 41
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ing. An influx of private money poured into university science departments, and since the act’s passing, the private funding of university biomedical research has increased by a factor of 20.
This growth in subsidies provided the legal justification for researchers to exploit human genes. And when I use the word “exploit,” I’m not using it in an ideological way—I’m simply using the terminology of a patent lawyer. During an interview with a New York Times reporter, Todd Dickinson, the former U.S. Patent and Trademark Office’s commissioner, took exception to the idea that patents allow a “government sponsored monopoly,” a phrase he
found imprecise. Instead, Commissioner Dickinson corrected the reporter, saying candidly and without irony, “We like to say ‘right to exploit.’ ” Today, private pharmaceutical companies (many of which are partnered with universities) are engaged in a manic—maniacal, even—race to patent every imaginable human gene, protein, and cell line that might be profitable.
The BRCA-1 and BRCA-2 genes are linked to breast cancer and
are owned by Myriad Genetics, whose literature reports, “Women with a BRCA mutation have a 33 to 50 percent risk of developing cancer by age 50 and a 56 to 87 percent risk by age 70.” Myriad has a monopoly right over the use of the gene in diagnostic tests or therapies, which means that every time a woman is tested to find out if she carries those mutated genes, a hefty royalty has to be paid to Myriad. Also, if a researcher discovers a therapy that prevents cancerous mutations in these genes, he or she is obligated under the law to secure a license from Myriad, and the company has used its patent to block research on the gene. This is one of the ways that these kinds of gene patents contribute to the skyrocketing costs of drugs and medical care in the United States and throughout the world.
Helena Chaye, like many I’ve spoken with in the business of
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drugs and science, feels uncomfortable about these kinds of situations. As the director of Business Development at the biotech corporation MediGene, she secures and sells gene patent licenses for the company. Chaye finds herself in an uneasy position. She has both a Ph.D. in molecular genetics and a degree in law, and is inti-mately familiar with both areas. “From a private company’s perspective,” she tells me, “you want everything to be protected. You want the ability to block other people, and you want the ability to monopolize a certain sector or a certain product and block others from entering, even though you may not be the one [who’s] actually developing it.” For many commercial entities, it simply makes no business sense to put anything in the public domain.
“I personally don’t believe in that,” Chaye says. “From what I do for a living, it’s a struggle, philosophically, that I’m having to patent everything.” She continues: “If genetic sequencing was publicly available for diagnostics, for example, you wouldn’t have to go through Myriad and pay four thousand dollars for a breast cancer test. If that was available to other parties, then you could have somebody else develop it at a much cheaper rate and be available for everyone.” She pauses. “I mean, the flip side of that is they say,
‘Well, we’re not going to be able to develop something so expensive unless there’s some sort of monopoly that protects us in the future.’
But I think there’s a reasonable level at which certain things should be protected, and certain things should be left to the public domain.”
My favorite patent request was submitted by a British waitress and poet who protested the gobbling up of the genetic commons by filing patent application GB0000180.0. She wanted to patent herself. “It has taken 30 years of hard labor for me to discover and invent myself,” Donna MacLean drily wrote in the application, “and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new. I have led a private existence McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 43
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and I have not made the invention of myself public.” MacLean
added, “I am not obvious.” The provocateur poet didn’t receive her patent, but she made her point.
PATENTS AS STUMBLING BLOCKS
While many are still happily riding the moneymaking bandwagon, there are a growing number of scientists, medical researchers, and even companies that believe certain gene patents can inhibit research. The chief scientific officer at Bristol-Myers Squibb, Peter Ringrose—hardly a radical anticapitalist Luddite—said that there were “more than fifty proteins possibly involved in cancer that the company was not working on because the patent holders either
would not allow it or were demanding unreasonable royalties.” Dr.
Gareth Evans, a consultant in medical genetics, also believes that the economic value of genetic patents make research more secretive and restrictive, and therefore lessens the chances of scientists finding cures.
The hoarding of these kinds of patents threatens to create a
“tragedy of the anticommons,” as Rebecca Eisenberg, a National Institutes of Health–affiliated law professor at the University of Michigan, calls it. The phrase “tragedy of the commons” was
coined by Garrett Hardin in his classic essay of the same name, and its primary argument goes like this: If anyone can use common property—a pasture where farm animals can freely graze, for instance—then it can be overused and trashed. While this can happen to physical resources, a patented gene won’t suffer the same fate, but as Eisenberg points out by inverting the phrase, tragedies do occur from fencing off the genetic commons. Yes, it’s true that patent protection provides the financial incentive for companies to invest in research and development, which, in turn, generates many useful drugs and inventions. Patents aren’t inherently bad, but Eisenberg McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 44
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argues that certain patents can be problematic when the protected materials resemble a discovery, rather than an invention.
This kind of patent ownership creates bureaucratic stumbling
blocks and economic disincentives that can dissuade laboratories from dealing with certain genes. This was the case with hemochromatosis, a hereditary condition that can cause liver or heart failure (the gene that carries the disorder is found in one in ten people). In 1999 two companies were fighting over the ownership rights of the patented gene connected to hemochromatosis. This created confusion over who owned the patent and to whom medical laboratories should pay licensing fees, helping to shut down research on DNA tests that screened for the condition. Five labs halted testing for hemochromatosis, and twenty-one others decided not to offer the test at all.26
Professor Eisenberg argues that the existence of a genetic commons speeds efficiency in medical research because it eliminates the need to track down and negotiate with numerous patent owners.
This point was highlighted in 1999 when ten of the world’s largest drug companies created an alliance with five of the leading gene laboratories. The alliance invested in a two-year plan to uncover and publish three hundred thousand common genetic variations to prevent upstart biotechnology companies from patenting and locking up important genetic information. The companies (including Bayer AG and Bristol-Myers Squibb) wanted the data released into the public domain to ensure that genetic information could be freely accessed and used for research. Its mission undermined the assertion that a genetic commons inevitably leads to commercial suicide and the end of research incentives.27
What’s most troubling about thousands of DNA sequences being
owned by a handful of companies is the fact that genes are deeply interrelated. For instance, there is no single gene that causes Alz-heimer’s disease, which instead results from a variety of environ-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 45
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mental factors and interactions with other genes. Scientists have mapped much of the human genome, figuring out that there are
roughly one hundred thousand pieces of a genetic jigsaw puzzle.
But in order to effectively fight diseases with genetic technologies, researchers have to learn how each privately owned gene connects and reacts with the ones around it. Imagine trying to put together a puzzle if you had to buy a random assortment of jigsaw pieces from dozens of companies. You might get frustrated, even give up. When you have to secure multiple licenses from several companies just to begin research, it is all the more difficult for scientists to efficiently and affordably do their job.
“It’s a really big problem if you have to sign lots of agreements,”
Eisenberg told New Scientist. “Licenses and material transfer agreements with companies are taking longer to negotiate, so it may take weeks or months.” Similarly, Jeffrey Kahn, director of the University of Minnesota’s Center for Bioethics, cautioned that high licensing fees can hold medical progress hostage. “If you’re a start-up company, you need to have those licenses bagged,” MediGene’s Helena Chaye tells me. “You need them in your back pocket to go and raise money or to entice investors to put more money into it because you’ve got new licensed technologies.” Not having those licenses, she says, “could definitely hinder your operations.” And if you think that many of these companies aren’t aggressively guarding their genes, just listen to Human Genome Sciences CEO William A.
Haseltine, who openly stated: “Any company that wants to be in the business of using genes, proteins or antibodies as drugs has a very high probability of running afoul of our patents. From a commercial point of view, they are severely constrained—and far more than they realize.”
Geneticist John Sulston argues in his book The Common Thread that it seems unlikely “that patent laws combined with untrammeled market forces are going to lead to a resolution that is in the McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 46
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best interests of further research, or of human health and well-being.” Advocates of privatization argue that having a commons that anyone can freely draw from will mean the end of creativity and innovation, but the opposite is often true. The way patent law is applied in genetics can limit researchers’ choices, which means the scientific imagination becomes routinized and stifled. There’s little room for the kinds of visionary ideas and accidental discoveries that evolve into real breakthroughs. An argument for the commons—whether it’s the genetic commons or a folk-song commons—is an argument for more creative elbow room.28 But because of our blind faith in privatization, freedom of expression® has been limited artistically, socially, and scientifically.
SEEDS = INFORMATION
I live in Iowa, and I am surrounded by corn, pork, pickup trucks, and, from what I hear, meth labs. Over the past few years, I’ve been inundated by plenty of weird and wonderful stories about farming and rural living. However, one of the most unsettling, science fiction–sounding scenarios I’ve come across is the “Technology Protection System,” or “terminator technology,” as it is known in the press. This technology enables seed companies to genetically alter their patented seeds so that crops become sterile after one planting, turning off life like a light switch. It’s a way of preventing farmers from retaining seeds from the previous year’s crop and replanting them.
Saving and replanting seeds is something we humans have been
doing since we stopped being nomadic creatures, but the practice is now illegal with seeds that are patented. The terminator seeds were developed by the U.S.–based Delta and Pine Land, whose president trumpeted, “We expect the new technology to have global implica-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 47
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tions.” Delta and Pine Land claimed that the terminator seed would be marketed primarily in developing countries to prevent farmers from saving, trading, and/or replanting seeds that are sold by U.S.
corporations. Interestingly, the seed industry experienced many aspects of the Napster file-sharing controversy a few years before it hit the music industry.
While there are obvious differences, there are also striking similarities. MP3 music files circulate on the Internet because someone had to purchase a CD, which was then inserted into a computer and
“ripped” into digital files. These files can then be exactly duplicated, and copies are made of these copies, then shared. This is also true of privately owned seeds, though the earth (rather than a computer)
“reaps” this information without permission. These copied seeds can then be given to other farmers through informal trading systems, delivering them from person to person, a sort of rural peer-to-peer file-sharing network. Even though the seeds are patented, much like music is copyrighted, this can’t stop someone from creating a facsimile of someone else’s intellectual property. This is why the terminator technology was invented.
Sterile seeds may be an inconvenience for American farmers
who, for various reasons—including being riddled with debt—
want to continue saving seeds. But they may prove devastating for their poorer counterparts in Third World countries who rely on subsistence farming. U.S. Department of Agriculture (USDA) spokesperson Willard Phelps stated that the goal of the terminator technology is “to increase the value of proprietary seed owned by U.S. seed companies and to open new markets in second and Third World countries.” The primary creator of the terminator seed, Melvin J. Oliver, made clear his invention’s purpose to New Scientist: “Our system is a way of self-policing the unauthorized use of American technology,” he asserted, comparing it to copy-protection McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 48
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technologies that prevent the duplication of music. And we wonder why so much of the world hates us.
In mid-1998 Monsanto made an attempt to purchase terminator
seed–patent owner Delta and Pine Land. However, this technology met with heated worldwide protests that targeted Monsanto as the next Great Satan, and in early 1999 the company stepped back in
“recognition that we need some level of public acceptance to do our business.” Although Monsanto backed out of the merger, Delta and Pine Land, which still holds the terminator-seed patent with the USDA, has continued to develop the technology. Just as in the movies, the Terminator lived on. Delta and Pine Land official Harry Collins stated in January 2000, “We’ve continued right on with work on the Technology Protection System. We never really slowed down. We’re on target, moving ahead to commercialize it. We never really backed off.” Since then, more terminator-technology patents have been awarded.
Four-fifths of the sixteen hundred patents issued for genetically modified crops are owned by just thirteen companies, and some of the most significant patents belong to Monsanto. The St.
Louis–based operation was founded in 1901 as a chemical com-
pany, and it gained notoriety in the 1970s because it was responsible for creating Agent Orange. This chemical compound was used by the military to clear jungles in Vietnam, which led to illness and death in thousands, and the company has also been implicated in several cases of employee and residential contamination. A Monsanto production plant contaminated the Missouri town of Times Beach so much that it had to be evacuated in 1982, and in 2002
Monsanto lost a case against lawyers representing a small Alabama town that had been poisoned as well.29
By the mid-1990s Monsanto moved much of its chemical opera-
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crops. The contract for Monsanto’s Roundup Ready soybeans al-
lows the company to search a customer’s farmland for signs of saved seeds, and, to nab offenders, the company can track purchase records and check with seed dealers. Among other things, the
company has hired Pinkerton detectives—the same private police force hired by the Rockefellers to murderously bust unions in the 1920s—to investigate tips on seed saving. In addition, the company created and advertised the existence of hotlines for neighbors to report farmers who save seeds. “Dial 1–800–ROUNDUP,” said a
Monsanto ad. “Tell the rep that you want to report some potential seed law violations or other information. It is important to use
‘land lines’ rather than cellular phones due to the number of people who scan cellular calls.”30
Monsanto also developed a kit that determines whether or not a plant was derived from patented seeds by using a principle similar to a pregnancy test, but applied to leaves. Scott Good was one of the many farmers who dealt with the wrath of Monsanto when he
saved his seeds and replanted the company’s intellectual property.
“They showed up at my door at six o’clock in the morning. They flipped a badge,” said Scott of Monsanto’s agents. “They acted like the FBI. I was scared.” Farmers who infringe on Monsanto’s patents have been fined hundreds of thousands of dollars, and some face bankruptcy. Much like other large seed companies, Monsanto offers incentives for seed distributors to carry their patented seeds rather than public-domain seeds.
A farmer’s choice to plant public-domain seeds becomes in-
creasingly difficult or impossible when near-monopolies exist within the agribusiness industries. Factory farming has flooded the market with low-priced crops, which forces farmers to purchase the patented, high-yield seeds or go out of business. University of Indiana seed geneticist Martha Crouch commented to Science maga-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 50