The U.S. government will allow you to patent almost anything, with very few exceptions. You cannot patent food recipes. You cannot patent mathematical algorithms, unless of course, you call them computer programs (which are nothing more than mathematical algorithms). You cannot patent things that have already been patented. You can patent things that have been done before, so long as no one catches you, and even if they do, there is no accountability. Someone even patented the act of "exercising" a cat using a laser pointer to entertain it. There are some pretty absurd things you can patent. Genetics happens to be one of them.
Genetics should not be patentable. First, genetic material is little more than a mathematical algorithm using a different form of math than traditional arithmetic. Second, genetic material used to grow food (vegetables or animals) is nothing more than a recipe for creating food. Neither of these things are legally patentable. So, why are genetically engineered or even just selectively bread seeds patentable? Personally, I think it is because our government is run by uneducated politicians (by uneducated I mean, they have almost no education in anything relevant to their job; an education in politics is little more than learning how to get into office; it does not teach anything about the real world problems you will have to deal with once you get there). Really though, I do not care why. I want to discuss why genetics should not be patentable.
For a patent to be enforceable, there are some requirements. The first requirement is that the patented thing be easily distinguishable from similar things. If someone invents a flint lock made from tool steel, and someone else makes one from spring steel, they cannot both patent their inventions, because they are almost impossible to distinguish from each other. Any case of patent violation could claim that the stolen design was the one from the other guy, and while it is possible to test the metals, the cost would be very high. Genetics has an even worse problem. Compared to testing genes, testing metals is trivial. It can cost hundreds or millions of dollars to check a sample of genetic material to see if it matches a specific sequence. The problem is aggravated by the fact that most people do not have the ability to do this. This brings me to the biggest problem with not being easily distinguishable. What happens if someone gives me a bag of seeds, where they may be patented genetic material in some of the seeds? If those patented seeds were not obtained directly from the patent owner (for instance, a friend gives me a bag of popcorn kernels where some of the seeds are from special Monsanto corn he grew), then it would be illegal for me to plant and grow those seeds. Here is the problem: I now want to grow my own popcorn. I could go to the store and buy seeds, or I could use the bag of seeds my friend gave me. If I choose the later, I am legally obligated to pick through the seeds, removing the Monsanto seeds from my planting stock. The cost of the genetic profiling required to separate the seeds is absurd. Even most very rich people would not be able to afford it. Because the patented material is not easily distinguishable from similar things, it is absurd to expect anyone to honor it. Worse, if my friend neglected to tell me about the Monsanto corn, I could be breaking the law without any way of knowing. So that sounds pretty bad, but it keeps going. Let's say the bag did not actually have any Monsanto corn. My friend grew some heirloom variety of corn that is so old it is not patentable. So, I grow some of the seeds in my backyard. From my harvest, I set aside some of the seeds to grow the next batch and so on. It may sound like I am safe, but I am not. What if my neighbor bought some Monsanto corn and grew it in their backyard? Now, some of my corn is probably going get pollinated from the Monsanto corn. The resulting seeds are now a cross between my heirloom variety and the Monsanto stuff. At least half of the seeds pollinated with the Monsanto pollen probably have the patented Monsanto genes. It is now illegal for me to plant those seeds, even though I may not have a clue that they contain patented material, and there is no reasonable way for me to tell that they have patented material in them. And, the government still expects me to honor Monsanto's patent. Thankfully, it is going to be extremely difficult for Monsanto to catch and prosecute me, because the cost for them to discover my patent infringement is very high. Still, using law to define ethics is a rather tyrannical practice (in fact, it is exactly how tyrants work).
The second problem is obviousness. This requirement is that things that are either obvious or common knowledge cannot be patented. This one gets really hairy. This is also a part of patent law. Legally, a thing that is obvious or common knowledge cannot be patented (it still happens all the time though). If something is common knowledge, it is subject something called "prior art." Prior art is anything that has already been done. If you sue me for infringing your patent, I can get your patent invalidated by showing that you were not the first person to come up with the idea. Note that it does not have to be me that invented it first. If I can show that anyone came up with the idea before you, your patent is invalid. The idea with these is that if someone else could easily come up with the same idea, then you should not be able to have a monopoly on it. Now, applied to genetics, this can be used to show how absurd it is to patent genes. First, all genetics were created by one of two things. The first is God. If God created all genetics, then it is pretty much all prior art. Nothing built on these genetics would be patentable because it has pretty much all been done (Monsanto looks for useful sequences in existing organisms and puts them into other organisms; no original genetic code is created). The second is random chance. If random chance created genetics, then I would argue that it must be obvious. If it is obvious, it is legally unpatentable. In this case, it is still also all prior art. So, this argument may seem weak. It is in some ways, but it still has the law behind it. Prior art is legally acceptable evidence that a patent is invalid. So, legally if I can find each genetic sequence used in a Monsanto seed in something else that has existed since before Monsanto created the genetics for the seed, I should be absolved of any wrong doing. The problem is that Monsanto has the means to prove that I have used their seeds, but I do not have the means to show prior art, entirely because I cannot afford the massive genetic profiling that would be required to do this. In other words, I am automatically guilty of patent infringement unless I can afford to prove innocence. Further, Monsanto has no accountability. If I do manage to prove the existence of prior art, they do not have to pay my research costs or even pay damages for the costs of the law suit. They also do not have to compensate their customers who paid premium prices because Monsanto's invalid patent protected the company from competition. They loose their patent, but they should never have had it in the first place, and they still did benefit from it. Note that this does not only apply to genetics. This lack of accountability applies to all types of patents. In genetics, however, the high cost of proving innocence makes it far worse.
Now, let's take this one step further, into the absurd. Eli Whitney invented the cotton gin, a device to make the arduous task of separating cotton fibers from the seeds much easier and faster. Now, who would he have sued if nature had randomly created a cotton gin? Let's say that a combination of a lightning strike, a falling tree, and the perfect position of iron ore and water managed to create a cotton gin without any human intervention. Who would he sue? We do not have to worry about this because it will never occur. If the combination of random natural events could create a cotton gin, it would not be patentable, because it would be obvious. Ideas like dams, which have been built by beavers for millenia or burning wood for heat, which has been done by lightning for even longer, are not patentable because they are obvious. One consequence of this is that humans have learned from nature to do these things, as soon as we developed sufficient technology to do it. Now, some might say that genetics is different, because it is so difficult. I would argue that at one time, building a dam was an insurmountable task for humans. We had to develop the appropriate tools before we could build dams. Genetics is not any different. Unlike the cotton gin, nature routinely combines and alters genes to create new varieties of organisms. In fact, nature can alter individual genes and even small parts of genes. We do not have a clue how small parts of genes interact to develop different life forms. Even Monsanto can do nothing more than search of gene sequences that do things and hope that inserting them in the right place will add the desired traits to their plants. Essentially, modern genetic engineering is nothing more that reverse engineering things nature has created, and trying to combine the "code" differently to get desired results. There is no invention going on here. It is all prior art. As with the dam, we are just adapting things nature has created to do what we want. Just because the tools for doing this were invented recently does not change the fact that we are doing nothing more than combining prior art in rather obvious ways. For instance, is it something novel to make a crop resistant to herbicides so that higher doses can be used to destroy weeds, given that the technology to do so exists? Is it novel to use genetic engineering to improve the taste, texture, or nutrition of food, given that the technology to do so exists? How many people have wished that some healthy food was better tasting? How many people have wished the junk food was healthier? If these are not obvious things to do with new tools capable of doing them, I do not know what is. So, now for the hundred dollar question: If nature manages to randomly produce something that Monsanto has patented, who does Monsanto sue? Nature will never randomly create a cotton gin, because it is too complex for natural processes to produce. Genes are not too complex for nature to produce (right, a seed is, evidently, less complex than a cotton gin; take that, opponents to natural selection). In fact, it is extremely probable that nature has produced "Roundup Ready" varieties of many plants throughout the millions of years it has been playing with genetics. Evidence has even been found that ancient ancestors of wheat, corn, and many other grains were much more nutritious than modern varieties (in fact, some evidence support the theory that the "grain" classification of food plants contains exclusively human created plant varieties; otherwise stated, all plants classified as grains are man made, thus the entire classification itself may have been created through human intervention).
Anyhow, allowing genetics to be patented is absurd. There are at least two legal reasons genes should not be patentable. There are multiple ethical reasons they should not be patentable, including the fact that it is impossible for most people to distinguish the difference between patented genetic material and public domain genetic material. It is like making laws against certain types of speech but not telling the people exactly what it is that is illegal to say (throughout history, tyrants have done this and similar things). Also, the transfer of genetic material is such an easy process that it is almost impossible to tell whether or not it has even occurred. Making arbitrary laws that are impossible to determine if they have actually been broken or not is the hallmark of an oppressive government. While this is not criminal law (which would allow the government to punish people on charges that are impossible to verify), it is still wrong. Technically speaking, if I used traditional plant breeding techniques to create an herbicide resistant variety of corn or rice, and if the random combinations of genetic material created in the process managed to match the genetic code of Monsanto's Roundup Ready variety of the same plant, I could be sued for patent infringement, even though I used a completely different technique without any means of comparing the two products. This is ethically wrong! This is actually not just a problem with genetic patents. It is not horribly uncommon for two people to invent the same thing around the same time. When this happens, the person that gets the patent papers in first wins. This is extremely unfair to the other person, especially when the cost of inventing is high. With genetics though, this is aggravated by the fact that most people do not have the means to tell when they are violating patents or not. Plant husbandry can take years to create what genetic engineering can do in months. The cost for both is ultimately very high. It is also uncommon for either to be used in a way that is really novel. Probably the most novel use of plants is using tobacco to produce cancer cells used to illicit an immune response. Nothing Monsanto, or any other plant producer, does with genetic engineering or even selective breeding is novel. Outside the realm of food, flowers are often bread for specific colors or scents. This is not novel. People like pretty and good smelling flowers. Within the realm of food, plants are engineered or bread for size, texture, nutrient content, flavor, and even aesthetic (colors, size, etc...). These things are also not even remotely novel. People have been successfully breeding food plants to favor one or more of these traits for thousands of years. It is neither new nor novel. Novelty is a legal requirement of patents. There may be some things that can be done with genetics that nature has not done and that has some novel unique use. Until at least one of these things is discovered, genetics should not be patentable at all.
Ultimately, gene patents are unethical. They amount to little more than a way for companies to sue people without much risk of those people being able to prove their innocence. Gene patents give great power to large corporations with a lot of resources at the cost of small businesses and individuals. It is a manifestation of a common form of government oppression and tyranny. Gene patents should be abolished.
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