Peter Sandøe

Research Professor in Bioethics

Royal Veterinary and Agricultural University

Buelowsvej 13

1870 Frederiksberg C

Denmark

It was once believed by some that patenting as such raises no significant ethical problems. However, this belief now seems untenable in view of the political debate over patenting that has taken place in Europe over the last decade. Since the European Council proposed a patenting directive in 1988, patenting has been the battle ground for heated ethical discussion of the acceptable limits of commercial use of biological material. Thus, it has become necessary to discuss patenting in these terms. Following the ten years of ethical debate, the directive adopted by the European Parliament and the European Council in April of this year takes a stance on a number of ethical issues. (Despite this fact, it can be useful to remind oneself, that a patent does not guarantee that it is morally acceptable or legal to make use of the patented invention. The fact that you can make a patent does not make it acceptable to society. On the other hand, also, a ban on patenting does not by itself prevents commercial use.) The aim of this presentation is to give an overview of the main ethical issues to which patenting in many people's mind give rise. More specifically I shall present and briefly discuss six ethical claims which - rightly or wrongly - have been made in connection with the patenting of inventions to be used in agriculture. One lesson that to my mind must be learned from the past ten years of debate is that ethical claims should not be ignored or taken lightly. Rather, if you disagree, you should meet ethical claims with serious ethical arguments. For each claim I shall first present what seems to be the key argument in favour of the view, and then I shall comment on the argument.

1. Patenting goes hand in hand with a lack of respect of nature
2. Patents violate our common ownership of nature
3. Patents violate the property rights of people living the third world
4. Patents will boost an unsustainable development in agriculture
5. Patents will have an adverse effect on animal welfare
6. Patents will inhibit technological progress in agriculture
7. Conclusion

1) Patenting goes hand in hand with a lack of respect of nature

The argument for this claim is "in accepting patenting of inventions that include naturally occurring biological material, we sanction a view of nature as a mere resource". However, nature possesses inherent value and should be treated with respect. Michael Fox: "The genetic engineering and patenting of life forms reflect an exploitative and doministic' attitude towards living beings that denies any recognition of their inherent nature."

Against this it may be objected:

• Patents are not what turn nature into a resource. It is because we already want to make use of natural resources that patents are interesting.
• If patents are banned within biotechnology, this will not stop us from viewing nature as a resource. Rather, it may prevent us from making use of specific natural resources.
• If these resources are of vital importance, a ban on patents may itself create an ethical problem.

2) Patents violate our common ownership of nature

Although often claim 1) and 2) are presented together, it is interesting to see that they do not sit well together. The first presupposes that we should leave nature on its own, and the second that nature is owned (by mankind). The latter view clearly implies that you are allowed to use nature for the benefit of mankind.

The patent directive permits the patenting of a range of types of biological material. However, it may be asked whether this is compatible with the view that nature is shared property of mankind as a whole. A particular problem here is the so-called "farmer's privilege".

This claim can be met, arguing that mankind has no use of a shared property if there is no incentive to realise the potentials of that property. Also, in the EU patent directive for biotechnological inventions protection of the patent holder's right is limited so as to uphold farmers’ privilege'.

3) Patents violate the property rights of people living the third world

It is interesting to see that this claim is often used on top of the two previous ones. Nevertheless the third claim presupposes that nature may be owned by man and is therefore incompatible with the first claim. Furthermore it is also incompatible with the second claim. This claim implies that nature is owned collectively by mankind, while the third one implies that natural resources are owned by those who inhabit the area where the resources are found.

A great deal of biological material that is of commercial interest in agriculture originates from plant or animal species found in the third world. However, the inventions that are made on the basis of this material will typically be made and commercially exploited by scientists and companies in the rich countries. This - it may be argued - is a form of exploitation of people living in the third world.

Ownership to natural resources that form the basis of biotechnological inventions is clearly an important issue. However, it may be argued that this issue should not primarily be dealt within the EU patent directive. This is primarily a subject for WTO (TRIPs) and UN (Convention on Biodiversity). Of course, it could be required that an invention is only patentable if the Convention on Biodiversity and other like international agreements are complying with.

4) Patents will boost an unsustainable development in agriculture

Patents will - allegedly - be used to accelerate agricultural developments in which pesticides and other agrochemicals play a crucial role. However, this is at a variance with the ideal of a sustainable development, an ideal which envisages the phasing out of pesticides and other agrochemicals.

There is a discussion to be had whether sustainability means no use of agrochemicals' rather than wise use'. Furthermore there is no reason to believe that agrochemicals are an essential component of future biotechnological inventions within agriculture. Finally, to deal with the challenge of feeding the growing world population in a sustainable manner, there is a huge need for progress within agricultural biotechnology.

5) Patents will have an adverse effect on animal welfare

Patenting will mean that biotechnological inventions are used more widely and with greater frequency in farm animal breeding, and this allegedly will increase pressures and stresses on the animals. For example, it has turned out that the use of IVF leads to an increased level of calving problems in dairy cows.

The EU Patent directive for biotechnological inventions does, however, contains a specific animal welfare clause. It says that processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes ... shall be considered unpatentable (Article 6)'. Interestingly, this will mean that to animal welfare is better looked after when biotechnology is used than it is with traditional selective breeding.

6) Patents will inhibit technological progress in agriculture

Officially, patenting is supposed to boost technological progress. However, patents may in fact have the opposite effect. Patents based on what are, technologically speaking, minor inventions may nonetheless be defined broadly and thus put heavy costs on those who want to make use of them. Sometimes those who have a patent may even use it to prevent an invention from being used.

This claim has a lot to say for itself. Thus it is a justified fear that patenting in the area of farm animal reproduction and genetics will favour those who are commercially minded rather than those who are innovative, and that patents may increase cost and limit innovation and the free exchange of ideas. Furthermore, it is difficult to think of inventions in the area of farm animal breeding, which owe their existence to the possibility of patenting.

Specifically against the point that patenting limits the free exchange of ideas it may be argued that actually patenting allows researchers to speak and exchange ideas, because their inventions are protected. When there is no patent protection, talking to your colleagues about industrial developments often is not possible.

7) Conclusion

Patenting of biotechnological inventions in farm animal production has given rise to a number of issues, here expressed in terms of six claims. The issues raised by the first five claims are either irrelevant to patent legislation or dealt within a satisfactory manner by the EU directive. In contrast with this, the last point raises an important issue that deserves further attention.

Acknowledgement: In the preparation of this paper, a number of people helped me greatly. I like to recognise their help in mentioning their names: Mads Bryde Andersen, Torben Greve, Merete Fredholm, Bo Hammer Jensen, Anne Marie Neeteson, Paul Robinson and Peter Ulvskov.

Peter Sandøe can be contacted by: E-mail psand@coco.ihi.ku.dk. Further details can be obtained from the web site on www.husdyr.kvl.dk/htm/psa/