Bioethics@
Bioethics Retreat 2005 Summary
Held January 7, 2005, 8:30am – 4:00pm
Scheman Building, Iowa State University
“Patenting Life: Implications for Agriculture in Iowa and the World”
Sponsored by the Office of Biotechnology and the Bioethics Program at Iowa State University
Retreat Topic: How do current U.S. intellectual property protections for innovations in plant and animal breeding impact agriculture in Iowa and in developing countries? This year’s bioethics retreat focused on this question and related ethical, economic, and legal issues.
Speakers Biographies
Dr. Daniel Kevles, Professor of History, Yale University, gives the Keynote Address
Keynote: Dr. Daniel Kevles, Professor of History, Yale University
Dr. Daniel Kevles is the Stanley Woodward Professor of History at Yale University. Dr. Kevles focuses his research on the past and present interplay of science and society, the history of science in America, and the history of modern physics, modern biology and environmentalism. Dr. Kevles will speak about the history of patents on living organisms in the U.S., and the ethical debates associated with this history.
Agenda
8:00-8:30: Continental Breakfast – 230 Scheman
Morning program: 220 Scheman
- GianCarlo Moschini explained the rationale for patents from the perspective of the discipline of economics. From this perspective, the main point of patents is to encourage innovation by providing a mechanism for capturing profits via a temporary legal monopoly on the economic exploitation of patented innovations. Other potential benefits of patents include fostering the dissemination of knowledge via the requirement that patented innovations be disclosed in exchange for the legal monopoly (unlike trade secrets), or by reducing wasteful innovation efforts, or by helping with technology transfer and commercialization. Moschini noted that this rationale for patents leaves other questions about patenting unanswered. For example, how should the incentive benefit of patents be weighed against the restrictions on use of the innovation that a patent entails? The economics rationale for patents also does not answer questions about what sorts of things should be considered patentable. Summing up the advantages and disadvantages of a patent system, Moschini suggested that Winston Churchill’s remark that “democracy is the worst form of government except all the others that have been tried” could be applied with appropriate modifications to patents.
- Roger McEowen focused on legal issues associated with the agricultural use of genetically engineered plants. There is a need for clear legal doctrines regarding the scope and limits of intellectual property in plants and animals. As farmers grow more and more biotech crops, examples of cross-pollination are not difficult to find. When the biotech crops cross-pollinate with neighbors’ crops, a question arises as to whether the cross-pollination itself constitutes a patent infringement. Should the law include an innocent infringer defense for farmers whose conventional or organic crops are cross-pollinated with genetically engineered crops? Other open questions include whether genetically modified plants should be treated as noxious weeds, and whether the legal system will clearly establish a duty to prevent cross-pollination to the growers of biotech crops.
- Daniel Kevles traced the history of patent protection for living organisms, focusing on the ethical controversies that have surrounded the development of such patents. Patents on living things were long discouraged by a doctrine developed in the 19th century referred to as the “product-of-nature” doctrine, which held that objects discovered in nature could not be patented. When the 1930 Plant Patent Act was passed, advocates for the bill claimed both that allowing patents for new plant varieties would increase innovation and also that plant breeders had an ethical right to intellectual property protection for their innovations. The 1979 Supreme Court case, Diamond v. Chakrabarty, allowed a patent on a living, genetically altered bacterium, and introduced the doctrine that whether an invention was alive was not relevant to the patent decision. This case, and subsequent patents granted for animals, raised new ethical controversies about whether allowing patents on living things devalues life, and whether the patent system was on a slippery slope that would lead to patents on living human beings. The latter question was answered in a later Patent and Trademark Appeals Board ruling which stated patents on living human beings would constitute a form of property right in living human beings, or a form of slavery, prohibited by the 13th Amendment to the U.S. Constitution.
Afternoon program: 220 Scheman
- Mark Janis argued that there are several ways that the patent system can calibrate itself, using doctrines that are already part of the system, to address actual and potential problems involving patenting plants. For example, if patent claims on plants are too broad, this can have the result of impeding use of the innovation and further research. Because the patent system is designed both to encourage innovation and to assure disclosure of patented innovation, the tools currently in the hands of patent lawyers and the courts should be sufficient to ensure that plant patents are not designed too broadly in the future. Janis argued similarly for similar potential problems, saying that the patent system should be given time to calibrate itself before would-be reformers head to Congress for a legislative fix to the current imbalances in the system.
- Stephen Smith argued that humanity is currently crossing the second of two important thresholds. The first threshold was the development of agriculture eight to ten thousand years ago. The current threshold is the genetic improvement and specialization of agricultural crops from around 1900 to 2100. The conscious decisions that are made now regarding the genetic base, Smith argues, will determine whether humanity’s future will be bright or otherwise. Agricultural productivity must increase, but without using new land. This creates the need for improving crop germplasm while stewarding genetic resources. Intellectual property protections such as patents could help expand the genetic resource base by encouraging the development of new varieties and eliminating free riding on already developed varieties. However, if institutions like public universities join the private sector in the race for patents, this may restrict their ability to undertake long-term humanitarian projects.
- Daniel Kevles & Max Rothschild shared a panel discussion concerning issues in patenting animals. Daniel Kevles described the developments of technologies that enabled the creation of animals that fit the requirements for patents, including novelty and non-obviousness. He also described the ethical arguments that patenting animals raised, including the concern that genetically engineering animals in the first place is unnatural or “playing God,” and that encouraging the development of transgenic animals by allowing them to be patented would adversely affect animal welfare. For example, the Harvard oncomouse was engineered to have a genetic predisposition to develop cancer. While animal advocates argued that this would inflict suffering on any oncomouse and was therefore unethical, researchers responded that studies done using oncomice instead of regular mice would need fewer animals, so overall the development of oncomice would beneficially impact animal welfare in research.
Max Rothschild discussed issues concerning patents for animal gene sequences. Patentable animal gene sequences can include DNA markers for genetic improvement, methods to identify animals, and new methods to measure traits. Rothschild discussed a number of issues that involve balancing the potential good of animal patents against potential drawbacks. Most generally, in an ideal world all valuable research would be funded 100% by the public. Given that this is not the case, however, researchers are increasingly looking to private sources for funding. This creates a situation where private funders expect to own the intellectual property that results from the research they fund, even if that research took place at a public institution. On the other hand, making some form of intellectual property protection available for researchers at public institutions can contribute to the research effort by ensuring a trusting atmosphere among researchers, and private funding in particular can open avenues of research not available in the public sector.
- Sergio Lence & Clark Wolf discussed the implications of the U.S. patent system for developing countries. Sergio Lence described research undertaken by himself and Dermot Hayes (ISU Economics department) on the impacts of different levels of intellectual property protection in different countries when the research benefits of IPRs in one country “spill over” to other countries. For example, research resulting in Roundup Ready soybeans was able to capture a premium from U.S. growers because of strong intellectual property protection in the U.S. However, growers in other countries where there are weak intellectual property protections have also used Roundup Ready, and this company cannot capture a premium for these seeds there. Their conclusions include that spillovers are generally beneficial to farmers outside the country that developed the innovation, and that consumers always benefit from spillovers. Within the originating country, farmers either lose or do not benefit as much as consumers from spillovers. When the originating country is an exporter of the crop, farmers’ losses exceed consumer gains as spillovers related to that crop increase. This, they conclude, calls into question the use of producer paid technology fees to fund and stimulate research, and suggests that some other mechanism be found to finance this research.
Clark Wolf examined several ethical issues concerning intellectual property in general and patents on living things in particular. He distinguished backward-looking arguments that focus on what rights an innovator might have based on claims arising from the discovery process, from forward-looking arguments that emphasize future benefits (such as providing research incentives) of protecting intellectual property claims. Wolf also examined the concept of biopiracy and the merits of often-made claims that the protection of intellectual property claims fosters biopiracy. Wolf concluded that while biopiracy can and has happened, it is neither pervasive nor inherent in any system of intellectual property protection. The best remedy may be to increase oversight of intellectual property systems to prevent faulty or overly broad claims from being recognized in the first place, and using the system to overturn such claims when they are initially recognized.
4:00 – 5:00 Reception – 240 Scheman
Recommended Reading
Mark Janis and Jay Kesan, "Intellectual Property Protection for Plant Innovation: Unresolved Issues after J.E.M. v. Pioneer," Nature Biotechnology 20, November 2002.
Daniel Kevles and Glenn Bugos, "Plants as Intellectual Property: American Law, Policy, and Practice in World Context," Osiris, 2nd Series, Vll (1992), 119-48.
Daniel Kevles, “The Advent of Animal Patents: Innovation and Controversy in the Engineeering And Ownership of Life,” in Scott Newman and Max Rothschild, eds., Intellectual Property Rights and Patenting in Animal Breeding and Genetics (New York: CABI Publishing, 2002).
Langinier, C., and Moschini, G., "The Economics of Patents," book chapter in: M. Rothschild and S. Newman, eds., Intellectual Property Rights in Animal Breeding and Genetics, CAB International, 2002.
Sergio Lence and Dermot Hayes, "Welfare Impacts of Cross-County Research Spillovers." Presented at the 8th International Consortium on Agricultural Biotechnology Research Conference.
Moschini, G., "Intellectual Property Rights and the World Trade Organization: Retrospect and Prospects," book chapter in: Anania, G., Bohman, M., Carter, C., and McCalla, A., eds., Agricultural Policy Reform and the WTO: Where Are We Heading?, Edward Elgar Publishing, 2004.
Max F. Rothschild and Graham Plastow, "Development of a Genetic marker for Litter Size in the Pig: a Case Study". In Scott Newman and Max Rothschild, eds., Intellectual Property Rights and Patenting in Animal Breeding and Genetics (New York: CABI Publishing, 2002).
Published by: Office
of Biotechnology, Bioethics Outreach
Ames, Iowa 50011-3260, (515) 294-9818, biotech@iastate.edu
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Last Update
01/17/06