Click here for UK Food Group Home Page Click here to return to UKabc Home Page

Back to : Reports on the ongoing negotiations on the International Undertaking on Plant Genetic Resources

Selected contributions from Live debate: should genes be patented? Wednesday 15 November, 3pm

Can you buy the rights to life? Should private companies be allowed to patent human genes, or those of staple foodstuffs such as rice? Is the gene rush out of control, or will this scientific revolution benefit mankind? Andrew Sheard of the BioIndustry Association, Sue Mayer of GeneWatch UK and Guardian science correspondent James Meek will be live online at 3pm on Wednesday 15 November to debate the complex issues and answer your questions. Read the Guardian's extensive report on the gene debate at

Link to the debate (requires registration):^1@.ee7b21e/97

Re: Plant Genetic Resources for Food and Agriculture



Re: Plant Genetic Resources for Food and Agriculture

Top of Page

PMulvany - 01:18pm Nov 15, 2000 BST (10.) | Delete | Reply


The Guardian has done an excellent job today in raising public awareness of the implication of patents and corporate ownership of living organisms.

It will not all be bad news, though, if negotiations being held today in the Swiss town of Neuchatel are successful. Under the auspices of the United Nations, countries are negotiating a little-known international instrument – the International Undertaking on Plant Genetic Resources (IU).

The IU would ensure that the genetic resources in the plant species that underpin the world’s food security are barred from privatisation. It would also ensure that benefits from the use of these plants by the seed and food industries and ultimately consumers are equitably shared with farmers in Developing Countries. [See <> for more details.]

However, there is a rump of countries who see threats to the dominance of the World Trade Organisation’s TRIPs agreement on intellectual property rights which requires all countries to have restrictive Plant Variety Protection legislation and to recognise the patents of other countries – including plant gene patents.

Rich countries are also reluctant to provide new and additional resources for the implementation of this Undertaking which will protect the world’s food security.

The IU is a practical way to achieve a positive and more equitable system for sustaining life on this planet. It could serve as a model for keeping genetic resources in the public domain, ensuring their conservation and sustainable use and providing real benefits both to consumers and farmers.

Does the Panel agree that international agreement to keep these resources in the public domain is a positive way forward and, if so,

could they suggest ways of raising political awareness of the importance of agreeing and implementing this International Undertaking?

GeneWatch - 03:11pm Nov 15, 2000 BST (10.1) | Reply

I agree that the IU on Plant Genetic Resources is one important mechanism to keep genetic material in the public domain. There has to be something wider as well to take in animals, microorganisms and humans too. Putting pressure on politicians so that genes are not allowed to be patented whatever their origin is important.

I hope that after reading the Guardian supplement, people will raise all these issues with their MPs and MEPs - this is one way of making our political representatives aware.

Sue Mayer

PMulvany - 03:24pm Nov 15, 2000 BST (10.1.1) | Delete | Reply

The IU is a first step. When agreed, it could serve as a model for other classes of genetic resources.

This increases the pressures on negotiators in Neuchatel to come up with a workable agreement.

Letters to MPs and MEPs may help, but perhaps Ministers of Agriculture, Environment, Trade and Industry and International Development should be the target?

Further than the IU, widening the exclusions from Patenting in Article 27.3(b) of the WTO/TRIPs agreement, as many countries would like, especially the African Group, could be a quicker mechanism to prevent life patents.


AndSheard - 03:46pm Nov 15, 2000 BST ( | Reply

If the IU would seek to impose a blanket ban patents on genes from plants, I am not sure that that is a sensible aim. Like any other gene, plant genes (or copies of them) are only patentable if in isolated form they are novel, involve an inventive step and are industrially applicable (useful). Imposing a ban on the patentability of these genes would discourage industry from working on the most promising ones. Plant biotechnology has great potential, both for the developing world and the developed world, but is presently of course a deeply political matter.

Andrew Sheard

jamesmeek - 03:52pm Nov 15, 2000 BST ( | Reply

I don't understand why banning the patentability of plant genes would discourage industry. It's not as if anyone is talking terms of banning the patentability of a useful and novel plant product. If someone invents the product, why can't they just patent that and not worry about the gene? It still seems to me like Harper Collins trying to copyright words instead of books.

I've read through some gene patents. They are the most extraordinarily vague documents. They talk in terms of a gene being useful for something generic - but they do not specify how that generic use can be made specific to that gene.

GeneWatch - 03:53pm Nov 15, 2000 BST ( | Reply

Hey did Andrew say COPIES - surely copies can't be patented - what's inventive about that!!!

jamesmeek - 03:22pm Nov 15, 2000 BST (10.2) | Reply

Very interesting. These are fantastically complicated issues - that is the main reason why they have been so little reported. Certainly I believe it would be quite wrong for any corporation to take out a patent on a plant or plant variety which had been traditionally used anywhere in the world and try to use that patent to restrict those traditional users. I believe there should be an international agreement to cover that - although I think it may be possible to renegotiate the existing TRIPS agreement to cover that. As I understand it, the Seattle meeting was supposed to deal with changes to TRIPS, but it never happened because of the protests.

There are more difficult areas where plants are concerned. It seems reasonable for someone to take out a patent on a GM plant, because a GM plant does seem like an "invention." That's quite a different issue from whether GM crops are a good or a bad thing.

The other situation is one where a scientist or firm from country A visits country B, takes samples of a plant which has been used for traditional purposes for centuries, and finds a new use for a substance from that plant. If that use is genuinely new, maybe that should be rewarded. I think the gap in the law is where the bioprospector from country A files a patent on a plant substance which is ALREADY used for that purpose in country B, but where traditional users have never bothered to patent that use because, of course, it never occurred to them to patent it, anymore than it occurred to anyone to take out a patent on butter as a novel addition to a slice of bread.

PMulvany - 03:31pm Nov 15, 2000 BST (10.2.1) | Delete | Reply

GM plants are indeed a dystopic invention and maybe there are Moral or Ordre Public reasons for not patenting these - especially the life-threatening Terminator Patents!

On local indigenous knowledge, a positive way forward has been the development of local community registers of plant and crop varieties and their uses which are then lodged with municipal authorities. Of course, the imposition of industrial IPR controls on local knowledge is unethical and should not be permitted, but at least these local registers form a first step in recording that the knowledge exists.


ilesere - 04:09pm Nov 15, 2000 BST ( | Reply

There are some potentially very useful applications of Terminator Gene Technology. What if a plant could be engineered to create a useful protein in its seeds (anything from a medical protein, to a biofuel). The plant would be new and probably very different from a lot of other organisms in the environment. Releasing it rampantly and uncontrollably would probably be a big mistake, and could mess up the ecosystem forever. However by introducing terminator gene the plant is incapable of spreading beyond a controlled area, and won't be able to pass its genes on to other platns (trust me with correct engineering of the protein and terminator genes in separate mini-chromosomes or plasmids this is possible). As a result Terminator genes can be used to produce the plant we want and test its compatibility with the environment. Furthermore it could mean that the plant was safe to use in the long scale. Further investigation into the potential of terminator genes MUST be investigated before they are condemned by knee-jerk reactions. Admittedly modifications to plant to only add in the terminator gene (as in the case of Monsanto forcing farmers to re-buy seeds each year) is another matter in which the use of Terminator Technology should be condemned.

AndSheard - 03:48pm Nov 15, 2000 BST (10.2.2) | Reply

Our patent law does not allow anything to be patented which is already in the public domain.

(I hadn't finished)

Public domain means anywhere in the world.

Neither does our law allow plant or animal varieties to the patented.

Andrew Sheard

PMulvany - 03:57pm Nov 15, 2000 BST ( | Delete | Reply

So-called 'Rogue' patents, of which the Neem patent and Agracetus' Cotton patent are examples, were filed in the US. Even there, showing an inventive-step and non-obviousness, are requirements and still patent applications were initially allowed.

EU law is closely following the US and patentability is could be extended similarly.

But beyond patents, there is law requiring the registration of seed varieties and recognition of IPRs on plant varieties in acordance with the patent-like UPOV 91 which the UK has ratified.


AndSheard - 04:19pm Nov 15, 2000 BST ( | Reply

Three separate points:

Certainly some patents are granted which shouldn't be -- no system is perfect -- and there are mechanisms in different countries, some better than others, for sorting out the ones that shouldn't have been granted.

EP and UK law are not, however, following US law. They are quite independent.

Plant variety rights are not, as far as I am aware, obligatory for anyone to apply for, although there are minimum standards imposed by TRIPA on any country who chooses to join the WTO.

Andrew Sheard

GeneWatch - 03:56pm Nov 15, 2000 BST (10.2.3) | Reply

On the issue of whether GM plants should be patentable - the question in legal terms is how long after the creation of the GM plant should the invention extend. To all future generations? Biological processes have taken over in its reproduction.

The interesting question is: are patents really the right approach to take. Are we trying to suqeeze a new technology with a self-replicating dimension into a system designed to deal with new vacuum cleaners?

Top of Page


Top of Page

sedan - 12:00pm Nov 15, 2000 BST (9.) | Reply

I don't know if all the reporting on this subject has been accurate, either. Can somebody clarify this for me:

Are people really filing patents for actual gene sequences? So that nobody can use that information, for any purpose, without paying a royalty? Or is this lazy reporting in newspapers, who just want a sensational headline like "BIOTECH COMPANY PURCHASES LIFE ITSELF?"

sezzyboy - 01:28pm Nov 15, 2000 BST (9.1) | Reply

I can answer that. Companies can only file a provisional patent if they can prove something about the function of the gene. You cannot patent a sequence just because you sequenced it. If you have patented a sequence and haven't been able to ascertain anything about its function, it would be very easy to contest the patent.

So I think it's a mix of both - sensation hungry media and overzealous patent lawyers.

(here is the official description for the US Patent office: )

Isolated and purified genes are patentable inventions if they meet the PTO's standard criteria, including being novel, well-described and useful. If there is no use for an invention it is not patentable. The PTO recently issued guidelines concerning the amount utility an inventor must show in order to obtain a patent. Under these guidelines, patent rights will be granted only to those inventors that demonstrate that a gene has real world applicability.

PMulvany - 01:59pm Nov 15, 2000 BST (9.1.1) | Delete | Reply

Patent abuses are rife. There is a lot of concern about the honesty of those who apply for protection on material they know not to have been subject to any inventive step at all. It has been claimed by the Indian genebank that two thirds of applications made for patent protection of crop plants have been on farmers' material on which no improvement or inventive step has been made.

And it is hard for Developing Countries to find out if their material has been patented elsewhere: It is also expensive to challenge Developed countries' patent applications within their legal systems. For example: it cost $500 per case just to discuss an application in Australia.

Once identified and challenged, often using expensive lawyers, the patents are thrown out… it should be mandatory to declare the details of the origin of the original plant material in patent applications and inform the relevant authorities which have sovereignty over that material.

AndSheard - 03:45pm Nov 15, 2000 BST (9.2) | Reply

People are filing patent applications for molecules with copies of human genetic information. This does not mean that nobody can use the information for any purpose. Patents essentially only prevent the unauthorised commercial exploitation of the invention. They do not prevent research on the invention. Further, they last for 20 years and are by no means indefinite.

Andrew Sheard

bayliffe - 04:00pm Nov 15, 2000 BST (9.3) | Reply

I think that in the case of genetic patenting, "sensational" reporting is entirely justified. Biotech companies have been patenting genes for many years whilst there has been little or no constructive public debate on the subject. Hopefully this supplement will make people realise that it is a very important issue that will affect each and every one of us. As for the reporting, I can assure you that it certainly was not "lazy" - this is far to an important issue to cut corners on or try to pull the wool over people eyes. These patents are being used by companies to protect their knowledge and to recoup R&D spending, which means that there will be costs incurred in using them in. Just by looking at the number of multi-million pound lawsuits filed by biotech firms against their rivals for patent infringement shows how valuable the market is. The key thing is that companies are filing patents on an increasingly wide variety of human, animal and plant gene sequences - this is an undisputable fact - and with these patents they have the right to control and charge people for the use of what is, in many cases, part of the global commons.

Top of Page


Top of Page

keanes - 03:32pm Nov 15, 2000 BST (19.) | Reply

So if I discover the function of the appendix, does that mean I can patent it ?

GeneWatch - 03:35pm Nov 15, 2000 BST (19.1) | Reply

In the case of genes, if you discovered a gene that was important in the functioning of the appendix you could patent it and its use in, say, treating diseases of the appendix. It doesn't mean that the whole appendix is patented.


AndSheard - 03:37pm Nov 15, 2000 BST (19.1.1) | Reply

I agree. But the gene would have to be new, inventive (non-obvious) and industrially applicable (useful) before it could be patented.

Andrew Sheard

keanes - 03:38pm Nov 15, 2000 BST (19.1.2) | Reply

So what is the difference between patenting the appendix, if you discover its function when no one else has and patenting a gene ? I mean the appendix has always been there, lots have people have already found it (akin to sequencing a gene) , but say you are the first to work out what it does.

keanes - 03:39pm Nov 15, 2000 BST (19.1.3) | Reply

So what is the difference between patenting the appendix, if you discover its function when no one else has and patenting a gene ? I mean the appendix has always been there, lots have people have already found it (akin to sequencing a gene) , but say you are the first to work out what it does.

jamesmeek - 03:45pm Nov 15, 2000 BST ( | Reply

I think you're right. That's exactly the point. What is the difference? Maybe there isn't one, and maybe that's the whole absurdity of the idea of gene patenting.

AndSheard - 03:53pm Nov 15, 2000 BST ( New: | Reply

The appendix is there to see with your own eyes. The gene is not; it needs to be isolated from its surroundings for it to be harnessed for technological ends. And when a gene is isolated and characterised, and a use is established for it, the isolated molecule may be patentable.

Andrew Sheard

PMulvany - 03:47pm Nov 15, 2000 BST ( | Delete | Reply

Or if you are the first to file a legal document with the relevant authority to say that you know what it does? What worth is this bit of paper compared to the wealth of knowledge local people have about their plant and animals, their trees and their fishes? In US (and soon EU) law, quite a lot...?


ilesere - 03:52pm Nov 15, 2000 BST ( | Reply

One difference is that the appendix has a lot of prior art attached to it (lots of mention in text books) An individual gene by contrast may never have been mentioned because no one knows that its a gene yet. Even with Celera's vast squencing of genes they are still having problems assembling the sequences into a whole genome, yet alone actually identifying genes within those sequences. As a result those genes have yet to be identified as genes. Whether this is sufficeint for the patent to be granted or not is another matter, but its a start in the right direction.

Top of Page