Patenting of Genes and GMOs

On Saturday, 25 May 2013, the whole world marched against Genetically Modified Food and Crops - in the "March against Monsanto". Beatrice Ludwig, Principal Solicitor at Ludwig Lawyers (formerly BiLegal Lawyers), who is also a Urban Farmer and Seed Saver, gave a talk in Sydney on Patenting of Genes and GMOs. On request, here the transcript.

Ron Finlay said: “Growing your own food is like printing money”. 

And this is why we are all here today. 

Monsanto has managed to obtain a monopoly on the planting of certain seeds that have been genetically modified. Monsanto can claim ownership over these seeds and their offspring, because the patent offices worldwide have been granting patents on genetically modified organisms since 1980 when the US Supreme Court in Chakrabarty decided that GMOs can be patented in the United States.

In the 30 years since, Australian courts have never been asked to decide whether this practice of granting patents on GMOs is actually legal in Australia or whether it is in breach of the Australian Patents Act.

I have brought with me a jar of organic soy bean seeds - seeds that another seed saver freely shared with me. These seeds will grow into soy bean plants, and the plants will produce thousands of new seeds. I will eat some of the plants, and I will save the seeds of the healthiest plants. I will then share some of the seeds with others and re-plant the remaining seeds next year. And so it goes on, year after year, until I die - until my children and grandchildren die. We will never have to buy soy bean seeds again.

This is how farmers have operated for thousands of years. 

Percy Schmeiser case

Seed saving is also what Percy Schmeiser did. Percy Schmeiser is an 82 year old former Canadian canola farmer who had been farming his whole life -- each year saving the seeds of his best canola plants -- and re-planting them the next year. 

15 years ago, Percy Schmeiser found “Round-up Ready” GM canola on his property - despite never having planted it. The seeds could have been brought onto his property by bees or other pollinating insects. He never found out exactly how. The GM canola seed contains a dominant gene that cross-pollinated with Percy Schmeiser’s carefully selected canola plants. The unwanted result was a GM canola crop. 

What did Monsanto do? Monsanto, the patent holder of Round-up Ready canola, took Percy Schmeiser to court - for breach of its patent. The then almost 70 year old Percy Schmeiser was now forced to spend the next 7 years in various courts defending his rights - defending all farmers’ rights.

The Canadian Supreme Court eventually held that Percy Schmeiser was in fact in breach of Monsanto’s patent, that it did not matter how the original GM canola seeds got onto his property - whether someone planted the seeds or whether the wind or insects brought them in.

Myriad Genetics case

What happened to Percy Schmeiser in Canada could not possibly happen to Australian farmers, right? Or could it?

There is in fact a GM contamination case pending in Western Australia, the Steve Marsh case. However, the Steve Marsh case does not concern itself with patentability of GMOs or genes, that is, I won’t be talking about it now.

A genetically modified organism is a human, animal or plant that has a gene from another species artificially introduced into its genome.

Can genetically modified organisms be patented in Australia?

What about genes, the origins of life itself? Can genes be patented in Australia?

A basic premise of patent laws worldwide is that only human inventions can be patented, not mere discoveries of something that already exists in nature. This premise is also the basis of section 18 of our Patents Act that sets out what is patentable.

Despite this general understanding of the patent law, over the last 30 years, patent offices worldwide, including in Australia, have been granting thousands of patents on things that exist in nature, such as genes, and other biological materials as well as GMOs.

But is this practice legal?

Most of us in the general public would not have known anything about this practice, as it never affected us in the past. Most of us have never put our minds to what the consequences of the granting of patents over life would be. 

Australian courts have never been asked whether GMOs can indeed be patented. 

Australian courts had also never been asked to decide whether genes themselves could be patented, that is, until last year, when Cancer Voices Australia sued Myriad Genetics in the Federal Court of Australia. 

Myriad Genetics, a company whose legal interests are aligned with those of Monsanto, had obtained a patent on a breast cancer gene, the BRCA1 gene, the gene recently made famous by Angelina Jolie. 

The BRCA1 gene is not an invention. It is something that exists in nature. It was discovered, not invented. Therefore, it should not be patentable. 

Judge Nicholas, the Federal Court of Australia judge, in his Myriad Genetics decision of February this year, even acknowledged that a gene that is in the human body, cannot be patented. 

However, Judge Nicholas then turned around and held that once the gene is isolated, that is, removed from the human body, it can be patented. It is a bit like saying that if you chop a tree down into fire wood, you can claim a patent on the fire wood.

With respect, the consequence of making an isolated gene patentable is that the gene in the human body and its genetic coding can no longer be freely used. In effect, the Court held that a gene is patentable.

What is disturbing is that the Myriad Genetics judgment of the Federal Court of Australia seems to take it a step further than the Canadian Percy Schmeiser case. 

The Percy Schmeiser case concerned a genetically modified organism, an organism that had an isolated gene from another species introduced. This altered organism is the subject of a patent, not the gene itself.

The Myriad Genetics case on the other hand allows patents on an actual existing gene. Nothing new is created by isolating the gene. 

With all due respect, the Myriad Genetics judgment appears non-sensical and has the potential to result in very unfair outcomes, worse than the outcome of the Percy Schmeiser case. It further erodes our patent law.

There is however still some hope: The second applicant, Yvonne D’Arcy, a cancer survivor, has appealed the Myriad Genetics decision to the Full Federal Court. The hearing is expected to occur some time in August this year. 

Ron Finlay said: “Growing your own food is like printing money”. I would add: “Let’s remove Monsanto’s monopoly to print money.”

Call to Action

So what can we do?

1. At a political level, let’s promote a fair and ethical patenting system. Let’s ask our MPs to not allow patents on genes, whether isolated or in situ, biological materials and genetically modified organisms that can procreate. 
2. Let’s follow the Myriad Genetics appeal case in the Full Federal Court of Australia this August 2013 and ask our media friends to write about it and its possible consequences.
3. To farmers I would say: Don’t enslave yourself to Monsanto by purchasing their sub-standard and expensive GMO seeds. Embrace resilient Permaculture practices instead.