On a point made earlier in this debate, patents can be both for a product or process. The main issue in relation to GMOs is the fundamental one that patents are only available for new inventions, not discoveries. This translates into the distinction made in the TRIPs agreement, which allows WTO members to exclude from patentability 'plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes' (although plant varieties can be protected either by patents or by specific provisions). Can any more scientifically-minded contributors here comment on whether this distinction between biological and microbiological processes is valid?
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Based on this, the EU last year passed a Directive giving patent protection to biotechnological inventions, but excluding 'essentially biological processes for the production of plants or animals'. It specifically includes 'biological material which is isolated from its natural environment or produced by a technical process' presumably meaning a DNA string, though the other requirements of patentability would have to be met, i.e. industrial applicability - you have to show what it can do.
Picciotto, Sol --------------------
Man, that's waay too nuanced and full of shit to be clearly deciphered or trustworthy.
But it sounds like they are trying to protect the creation of genetically engineered bacteria, like those that produce insulin. On the other hand, they don't want naturally occurring organisms to be protected by patents, except seed stock. Seeds can also be genetically engineered from existing species to create hybrids, so they want to protect those, probably because custom seed lines have traditionally been patented. In other words, 'man-made' or 'invented' biological products are okay to patent, but 'naturally occurring' ones are not. Hmm. It sounds full of holes to me.
The distinction about micro-biological is probably intended to protect a whole array of bio-chemical sub-living, yet 'bio-active' processes that generate complex molecules like proteins, polypeptides, DNA strings, RNA and so. Viruses might fall into this micro-biological category. But it sounds like what this distinction is really intended to protect are the medical and pharmaceutical patents on human cell lines--a really obnoxious trend.
If a naturally occurring resistance system is found in a particular person's cells, and that cell line is cloned to reproduce that resistant system, then that cell line and the system can be patented!
There was a notorious case several years ago over taking blood samples in which some advantageous component of the person's blood cells was discovered. The doctor was part of a medical study and patented the resultant work, including the cell lines--all with very shaky 'informed consent.' Technically, you don't 'own' your own genes. How's that for freewheeling capitalism?
I still say scrap it all. We don't need to patent any of this business. What conceivable reason is there to patent any of this, except to protect somebody's profit, at the expense of everyone else?
While I was thinking about this last night, it occurred to me that cutting the patent and copyright laws loose from the entire field, might just have the opposite effect and speeding up competition over who can dominate the living processes of the bio-sphere first. So, you may be correct about the result. On the other hand, why give your own genes away to such exploitation?
On the other hand, the argument that secret processes would arrive to substitute for patent protections doesn't hold up, because this already exists and works independently of other protections. You can extend some openness to this part of the rip-off by modifying the civil case law to stop suits over proprietary information. Companies can keep their secrets, but if those are outed, there is no remedy waiting to take to court.
Any way, as for Doug's objections, if the lawyers can meticulously dance through the living cell, pointing out which constituents of life can and can not be patented, I am sure they can find a way to distinguish between the author of a text, and an industrial tank full of bacteria. After all they were the ones who invented the equivalence in the first place, right? All I am advocating is getting rid of that equivalence.
Chuck Grimes