In a friend of the court brief (PDF), the Justice Department said human and other genes should not be eligible for patents because they are part of nature.
Although the brief focuses on genes for breast and ovarian cancer, and specifically excludes man-made genetic modifications like those in corn and soybeans, it could be interpreted as having some implications for food biotechnology—excluding "biopiracy," for example, a pejorative term for the private appropriation of public biological resources.
As I explain in my book Safe Food: The Politics of Food Safety, patents on genetically modified foods raise at least six difficult issues, biopiracy among them:
• Ownership: the patents are often broad and owned by just a few companies. Biopiracy: this is the pejorative term for the private appropriation of public biological resources, the precise issue that elicited the justice department's brief.
• Enforcement: biotechnology companies use aggressive techniques to enforce their patent rights. Injustice: court decisions have consistently favored the patent rights of food biotechnology companies.
• Animal rights: patenting of animal genes raises religious and ethical questions.
• Terminator technology: the patenting of genes that prevent seed germination (meaning that farmers cannot save seeds and have to buy new ones every year).
Even with its limited scope, patent lawyers and biotechnology industry representatives hate the brief.
One patent lawyer characterized the new position as dumb. The Biotechnology Industry Organization warned that such a policy, if carried out, would "undermine U.S. global leadership and investment in the life sciences."
No wonder they hate it. Stocks promptly fell.
Patenting is patently unfair.
The Justice Department's brief helps some, but needs to address more of the issues noted above.
This post also appears on foodpolitics.com.