BUS 3305 – Business Law and Ethics

University of the People

Debate on Patenting Organisms

 Introduction

Scientific advancement has consistently played a pivotal role in the progress of humanity,

particularly in the realm of biotechnology. A sector of prime importance within this domain is the

development and application of genetically modified organisms (GMOs). The potential to create

new organisms designed to serve specific purposes heralds unprecedented possibilities in fields

as diverse as agriculture, energy, and medicine. The practice of patenting these GMOs, however,

poses a critical and controversial aspect of the broader dialogue. This essay seeks to delve into

this complex discourse, examining both the advantages and challenges associated with patenting

GMOs.

The ability to secure patents for genetically modified organisms provides the incentive for both

private and public entities to invest in this burgeoning field of science. The patent system, with

its provision of granting inventors exclusive rights to profit from their inventions for a specified

period, typically 20 years, acts as a catalyst for innovation. This exclusivity propels companies to

commit significant resources to research and development, leading to the realization of

groundbreaking advancements. These can materialize in the form of more robust and resilient

crops, more efficient biofuels, and innovative medical treatments, with far-reaching benefits for

society.

Financial investments involved in developing new GMOs are significant, often running into

millions of dollars. For companies to be willing to make such enormous investments, the

assurance provided by patents, granting a period of exclusivity and profitability, is crucial. By

functioning as a protective shield, the patent system helps secure these substantial financial
investments. Furthermore, the life of patents isn't infinite; upon expiration, the patented invention

becomes part of the public domain, allowing others to freely access, use, and potentially improve

upon the invention. In essence, while patents provide a period of exclusivity, they ultimately

contribute to the broader scientific and agricultural community.

Argument for Patenting Organisms

The patenting of genetically modified organisms (GMOs) is a critical aspect of the biotechnology

industry. The ability to secure patents for these organisms fosters innovation, safeguards

significant financial investments, and promotes scientific progress.

The patent system is a cornerstone of innovation. It provides inventors with exclusive rights to

profit from their inventions for a specified period, typically 20 years. This exclusivity serves as a

powerful incentive for companies to invest in research and development, leading to new

discoveries and advancements. In the realm of GMOs, these advancements can manifest as crops

that are more resilient to harsh conditions, biofuels that are more efficient, and new medical

treatments, among other benefits (Zhou, 2015).

The financial investment required to develop a new GMO is substantial. On average, the

discovery, development, and authorization of a new GMO plant cost $136 million. Without the

security provided by patents, which grant a period of exclusivity and profitability, companies

might be hesitant to make such substantial investments. The patent system, therefore, serves as a

protective measure for these significant financial outlays (Zhou, 2015).

Moreover, patents on GMOs are not permanent. After the patent term, typically 20 years, the

patented invention becomes public knowledge. This allows other companies, farmers, and

interested parties to freely access and use the invention. This can lead to the mass reproduction of
the GMO and the use of its underlying genetic design to develop improved versions of the GMO.

Thus, while patents provide a period of exclusivity, they ultimately contribute to the broader

scientific and agricultural community (Zhou, 2015).

The case of Diamond v. Chakrabarty serves as a landmark decision in the context of patenting

living organisms. The U.S. Supreme Court upheld the patent for a genetically engineered

bacterium capable of breaking down crude oil, which could be used in treating oil spills. The

court ruled that as long as the organism is truly man-made, such as through genetic engineering,

then it is patentable. This decision paved the way for the protection of biotechnology-related

inventions and sparked the growth of the biotechnology industry (Wikipedia, 2023).

The implications of this decision are far-reaching. It established a precedent that extends beyond

bacteria to other genetically modified organisms, including plants and animals. This has opened

up new avenues for biotechnological innovation, with companies now able to secure patents for a

wide range of GMOs. These patents have facilitated the development of genetically modified

crops that can withstand pests, diseases, and extreme weather conditions, contributing to food

security and agricultural sustainability. For instance, Bt cotton, a genetically modified crop that

produces an insecticide to combat cotton bollworm, a major pest, has been shown to increase

cotton yields by 24% and farmers' profits by 50%, thereby improving farm household living

standards by 18% (Qaim, 2020).

In the medical field, the patenting of GMOs has facilitated the production of pharmaceuticals and

therapeutic proteins. A prime example is the production of insulin, a critical hormone for people

with diabetes. Traditionally, insulin was extracted from the pancreas of pigs and cows, a process

that was both inefficient and costly. Today, insulin is primarily produced using genetically

modified bacteria, a method that is more efficient, cost-effective, and scalable (Zhou, 2015).
 Counterargument Against Patenting Organisms

The patentability of genetically modified organisms (GMOs) is a contentious issue that raises a

multitude of ethical, legal, and scientific concerns. One of the most significant arguments against

the patenting of such organisms is the risk of biopiracy. Biopiracy refers to the appropriation of

biological resources by corporations, often without providing fair compensation to the

communities that have traditionally preserved and developed these resources (University of

Pittsburgh Legal Collaboration, n.d.). This concern becomes particularly acute in the context of

the human genome, where the potential for biopiracy could be even more significant, especially

in an era of global health crises demanding rapid pharmaceutical responses. The fear is that

corporations could claim ownership over genetic resources essential for addressing these crises,

potentially limiting access to life-saving treatments.

Another critical concern is the potential stifling of research and innovation. Patents grant

exclusive rights to the patent holder, which can prevent other researchers from studying,

modifying, or improving upon the patented organism. This is particularly problematic in the field

of biotechnology, where progress often depends on the free exchange of ideas and resources. As

noted by a report from Princeton University, the patenting of organisms could potentially

"impede the free flow of scientific information, hinder the progress of research, and bring about a

monopolistic control of the resources of genetic research" (Princeton University, 1981).

Furthermore, the ethical implications of patenting life forms are profound. As highlighted by a

report from Harvard University, patenting life forms commodifies life, reducing it to a mere asset

that can be owned, bought, and sold. This perspective challenges our fundamental understanding

of life and biodiversity as a common heritage of humankind, not a corporate asset (Zhou, 2015).
The case of Diamond v. Chakrabarty, a landmark case in US patent law, further illustrates these

concerns. In this case, the US Supreme Court ruled that a human-made bacterium could be

patented under US patent laws. While this decision has been hailed as a turning point for the

biotech industry, it has also attracted criticism. Critics argue that the court extended patent law in

a way that Congress did not authorize, reflecting a policy choice by the majority rather than a

neutral legal analysis (Frank Darr, Ohio State Law Journal). Furthermore, the dissenting opinion

in the case, led by Justice William J. Brennan Jr., argued that because Congress had not expressly

authorized the patenting of biological organisms, the court should not extend patent law to cover

them (Wikipedia, 2023).

In addition to these concerns, George Mason University's Center for Intellectual Property and

Innovation Policy has expressed concern over what may be interpreted as judicial activism with

this ambitious legal thrust in advance of congressional ability to thoughtfully consider

appropriate legislation. While cases subsequent to Chakrabarty have provided some safeguards,

such as forbidding the patenting of limited DNA sequences, concerns have arisen that these

safeguards do not go far enough. The fear is that bio piracy of the human genome could take

place, especially in an era of global health crisis demanding a rapid pharmaceutical response

(George Mason University's Center for Intellectual Property and Innovation Policy, n.d.).

Conclusion

The question of patenting genetically modified organisms (GMOs) proves to be a complex one,

fraught with ethical, legal, and scientific complexities. This system's defenders argue that patents

act as an engine for innovation, safeguarding significant financial investments and driving

scientific progress. However, the potential dark side of this practice is equally compelling.

Concerns range from the threat of biopiracy, with corporations potentially exploiting biological
resources without providing fair compensation, to the stifling of research and innovation due to

the monopolistic control afforded by patents.

The ethical implications of patenting life forms are profound and disconcerting for many. The

commodification of life, reducing it to an asset to be owned, bought, and sold, presents a

fundamental challenge to our understanding of life and biodiversity. These issues are further

compounded in the wake of landmark legal cases such as Diamond v. Chakrabarty, which opened

the doors to patenting biological organisms, thus setting a precedent that many view with

concern.

The future of patenting GMOs will undoubtedly continue to be a contentious topic, necessitating

thoughtful regulation and oversight to balance the competing interests of promoting innovation

and protecting the common heritage of humanity. As we navigate this complex landscape, the

decisions made will have far-reaching implications on the biotechnology industry and, by

extension, the broader sphere of human progress.

Reference

George Mason University's Center for Intellectual Property and Innovation Policy. (n.d.). Center

for Intellectual Property and Innovation Policy. Antonin Scalia Law School. Retrieved from

https://cip2.gmu.edu/

Princeton University. (1981). Impacts of Applied Genetics: Micro-Organisms, Plants, and

Animals. Retrieved from https://www.princeton.edu/~ota/disk3/1981/8115/811514.PDF

Qaim, M. (2020). Bt cotton, yields and farmers’ benefits. Nature Plants, ResearchGate.

https://www.researchgate.net/publication/344616078_Bt_cotton_yields_and_farmers'_benefits

University of Pittsburgh Legal Collaboration. (n.d.). Legal Collaboration. University of

Pittsburgh School of Law. Retrieved from https://www.law.pitt.edu/

Wikipedia. (2023). Diamond v. Chakrabarty.

https://en.m.wikipedia.org/wiki/Diamond_v._Chakrabarty
Zhou, W. (2015). The patent landscape of genetically modified organisms. Science in the News.

https://sitn.hms.harvard.edu/flash/2015/the-patent-landscape-of-genetically-modified-organisms/