Can a company patent a fish gene? Not if it’s still in the fish. But if a biotech firm manages to extract and isolate a particular gene—say, the gene that enables a flounder to resist cold—many governments will now allow that company to patent its “invention.” What about as yet unimagined developments related to the original gene, or the extraction technique itself? International law has struggled to deal with such issues, but increasingly has moved toward a system that effectively blocks access to new genetic discoveries.
In the 1980s, according to Safrin, a professor at Rutgers University Law School, most biotech explorers operated largely without fetters. While that system encouraged scientific discoveries, it was, she acknowledges, “far from perfect,” and as companies started to realize—or at least predict—profits from their bio-prospecting, various restrictions began to emerge. The United States, the “world’s largest producer of bioengineered goods,” now “allows the patenting of genetic material to a greater degree than any other country.” In Safrin’s view, these patents have had a chilling effect, since the patents encumber any inventions relying on the protected material. The patents also alerted certain biotically rich nations, such as those with territory in the Amazon rain forest, that they were perched atop a potential bonanza. Under the developing doctrine of “sovereign enclosure” in international law, some governments moved to lock up those raw genetic resources, adopting restrictions that require bio-prospectors to agree to share future profits, even before they know what kinds of discoveries they might make. One curious effect of this, says Safrin, is that “while a person in Colombia might own a plant or cow, the national government owns the genetic makeup of that plant or cow.”
Local authorities have also gotten into the act, making bio-prospecting even more daunting. In the Philippines, for example, a researcher must first navigate “multiple layers of national government review and consent,” get “informed consent from indigenous communities” and “any affected private landowner,” and undertake an extensive program of public education, to ensure that everyone who might possibly have an interest in the potential discovery learns about it in advance. During the year Safrin studied the situation there, only two of 37 proposed projects cleared all the hurdles.
We’re all familiar with the “tragedy of the commons”: Fisheries and other resources are overused when too many people have access rights to them. A tragedy of the anticommons has been developing in the genetic realm: Too many people have rights to exclusion. Safrin calls this “hyperownership.”
She acknowledges that it’s not practical to return to a completely open system. But the United States could restrict patents somewhat—excluding, for example, genes that are discovered but not improved. At the same time, the doctrine of “sovereign enclosure” should be modified so that individuals or indigenous groups control access to some genetic material themselves. And there are more creative ways for nations to reap monetary benefits from their genetic resources. Such a framework would allow scientists to unlock many more secrets of nature that will benefit all of humanity.