This is old news, now from more than two weeks ago, but the US justice department has decided naturally occurring genes should not be patentable.
Really??
It’s kind of strange this news sort of came and went with hardly a comment from the blogging community. This is just the opinion of the US justice department, and might not hold, but it has could have wide ranging ramifications including in the area of genetically modified crops.
The article linked to above is mistaken, in my opinion, when it comes to what it says on GM crops. It says they would not be covered by this decision, because the genes they use are man made and not naturally occurring. I wasn’t aware we were to the point of being able to create artificial genes, at least as far as genetic engineering of plants, but maybe someone will put me in my place if I’m wrong on this… As far as I’m aware all research into plant breeding, transgenic or otherwise, involves genes found in the wild.
This could be really big news, or it might be nothing. Anyone have an opinion? Wild speculation maybe?
Let’s hope it sticks! I bet it won’t, though.
Any one given transgenic construct contains bits of natural and modified sequences from a few organisms. It’s not easy to do and isn’t practically (and I expect legally) the same as saying “I figured out what this native gene does and now no one can make money off it but me!” I think this ruling will have a lot more relevance in the medical community where this type of statement is made all the time (eg simple diagnostic tests that see if you have a good or bad cancer allele). I think it’s probably a fair analogy to say you cant patent the element iron, but you can patent unqiue machines or tools made of it.
I have ALL kinds of opinions, in the end none matter a whit with this one exception… Don’t feed the politicians and bankers.
Part of me laughs when I say it… part is serious.
I read that part of the patent issue was that Monsanto never got around/was able to patent its 1st generation RoundupReady soybeans in Argentina. Farmers were growing it against Monsanto’s wishes in that country (but without Argentinian law to back the company up) and then shipped soybean meal to Europe, where Monsanto tried to stop their sale by saying “hey, we own the gene that’s present in that meal.” I’m certainly no lawyer, but my understanding of patents are that you have to list every use that you “own” in your patent application (which makes them AWFUL to read). You can’t just patent a gene and then “own” any great uses for it that are discovered later. So it sounds to me like this ruling brings patents back in line with the original intention – to protect INVENTIONS not luck.
(though I’m confused why it’s apparently legal for a European food company to buy unauthorized soybean from some other country – i wonder if you go to some obscure little country you could do anything you want with U.S./European patents…i guess it’s all just a house of cards)
I’m not patent lawyer, and it’s probably all changed now, but at the time Europe did not recognize US patents on plants.
Europe on the other hand has their own system of variety registration that the US also does not recognize. In order to protect a GM variety in Europe it’s necessary to register that variety here, but at the time there was a policy not to accept GM varieties for registration.
At the time the round up ready soy beans were legal to grow in Argentina without paying royalties to the patent holder. Varieties used for animal feed do not require registration in Europe. Europe had a trade agreement with Argentina that allowed the import of the soy beans, but I think a precondition was they had to be ground into meal first so seeds were not being imported. It was simply legal to do this all. This was really a sore point for the US!
What I hear now however is Monsanto is not doing well as a company, and part of the reason is most of their patents have either expired or are about to expire, and they don’t have a lot in the pipeline.
In Europe on the other hand research into GM varieties is very active, and a number of things are in the pipeline. The most talked about are probably the GM blight resistant potatoes. But I’ve also read a lot of other things about smaller projects, for example disease resistant lettuce. It appears Europe does have some kind of mechanism now for patenting genes and/or plants, but I don’t know the details.
Knowing all of this makes me think the Justice Department position in the US is somehow a prelude to ending patents on plant genes, just at the moment where European seed companies might be in a position to start exporting their GM varieties to the US. My understanding is many of these European patents are for individual genes.