The Quite Race to Own Life and Matter

This article and others by this author can be found at: http://onthecommons.org

By David Boiller

This trend is not receiving much notice, but the “ownership society” is quietly making some very deep inroads indeed. A fierce land grab is now underway to own and control some of the most basic building blocks of life and matter. These include man-made genomes of artificial species, purified versions of elements of the Periodic Table, nano-scale formulations of medicinal herbs, genetically created hybrids of living and non-living matter, and much else. ("Nano" refers to atomic- and molecular-level biological and material technologies; one nanometer equals one billionth of a meter.)

Let's just be clear: We won't own these things. Big companies will. The biotech and nanotech modifications of nature will create a proprietary substitute for “real nature.” The difference? The “new and improved” nature will not be allowed to behave in the same sorts of free and natural ways that evolution has decreed over a span of millennia. It will be a commodified creature of the market that is therefore "better." Nature and life itself will be harnessed at its most elemental levels to generate profits.

While the champions of nanotech and “synthethic biology” tout its potential for alleviating poverty, hunger and disease (we’ve heard that one before, now, haven't we?), the patent holders, once the technologies mature, will wield enormous power over the very processes of nature, international commerce, and the social progress of developing countries.

The chilling future that is unfolding can be glimpsed in a new report i [1]ssued by the Ottawa-based ETC Group, the “action group of erosion, technology and concentration” (formerly RAFI). The report, “Nanotech's ‘Second Nature’ Patents: Implications for the Global South,” describes the expansion of “breathtakingly broad nanotech patents” and how they are likely to affect developing countries. As the ETC report notes:

With nano-scale technologies, the issue is not just patents on life — but on all of nature. In short, atomic-level manufacturing provides new opportunities for sweeping control over both animate and inanimate matter. In essence, patenting at the nano-scale could mean monopolizing the basic elements that make life possible.

The report comes on the 25th anniversary of the infamous Diamond v. Chakrabarty case, in which the U.S. Supreme Court for the first time recognized a patent on life — a genetically modified, oil-eating microbe. That June 16, 1980, ruling — by a 5-4 vote — set the precedent that living organisms could be patented and owned. It used to be unimaginable that genes, plants, animals, microorganisms and human genetic material might be owned, notes the ETC report. Now it is routine.

The broad new patents being granted for “fundamental nano-scale materials, building blocks and tools” means that future scientific innovation is likely to be smothered by “patent thickets” of competing patent claims. One reason that the computer and biotech revolutions were able to occur in the first place was because the basic research knowledge was available to everyone; it was not customary to patent basic science in the 1960s and early 1970s. But now, as companies and public universities scramble to own potential blockbuster inventions, basic knowledge is being made proprietary, impeding further research, innovation and public scrutiny. (Michael Heller and Rebecca Eisenberg have called this the "tragedy of the anti-commons.")

However this quandary is overcome (if at all), the implications for the developing world are not good. The top nanotech-related patents are owned by companies and universities in the U.S., Japan, Germany, Canada and France. Given this head-start, and the high costs of winning and defending patents, this means that smaller companies and developing countries will likely be shut out of the market. Their role will be to provide raw biological “feedstock” (under the classic "biopiracy" model) and to buy "finished" product. Already, for example, ETC reports that a Chinese researcher has taken ancient Chinese medicinal herbs, reduced them to nano-scale formulations, and claimed exclusive monopolies over the herbs or the process used to nano-size them. Harvard University claims patents on “nano-scale metal oxide nanorods” on 33 different chemical elements, which comprise nearly one-third of the chemical elements of the Periodic Table.

The more basic question, of course, is whether the commons of nature and life should be converted into commodities for the marketplace in the first place. Why should high-tech entrepreneurs be allowed to own proprietary knockoffs of nature on which we all have a legitimate moral claim, as human beings. And what about non-human life and its claims on the elements of nature? The very act of ownership implies that patented materials can be severed without consequence from their niche in the web of nature. The history of markets demonstrates, moreover, that a proprietary surrogate of nature may well disrupt and destabilize natural processes in unpredictable ways — which is why extreme care and public scrutiny are needed.

But addressing the inevitable ecological and biological damage of nanotech and synthetic biology will not be easy, since both regard their knowledge as a trade secret. While one might expect public universities to serve as an objective counter-weight, they are already compromised. As Professor Mark Lemley has noted, universities and public research foundations hold “a grossly disproportionate share of nanotech patents.”

If this sounds like déjà vu all over again, well, it is. As the Wall Street Journal reported on June 29, 2005, the entrepreneur-scientist J. Craig Venter, who tried (but failed) to own the human genome through his company Celera Genomics, now wants to create an entire set of genes, or genome, from scratch, and thereby create a new, proprietary man-made species. His first project is a single-cell bacterium. With $12 million of our money (via the Department of Energy) and $30 million from private investors, Synthetic Genomics Inc. wants to program DNA the way that computer programmers might write software code. While there are surely many important and benign results that "synthetic biology" may provide, the risks are also huge, not the least of which, again, stem from the private monopoly ownership of a life form.

The implicit moral issue in all of these developments, it seems to me, is whether market norms will govern the debate — or whether a deeper, more humanistic and ecological perspective will prevail. Right now, the property-rights, free-market boosters have the field to themselves, and the commons is hardly in sight. This is very troubling. For now, the ETC Group report [2]is a good way to mark the 25th anniversary of the misguided Chakrabarty decision.