Patenting Elements of Nature:
No Patents on Non-Life Either!
Monday, March 25th, 2002
Governments at the UN are meeting this week to prepare for a painful evaluation of "Agenda 21", the environmental work plan that came out of the Earth Summit ten years ago. Among the issues on the New York agenda will be biotechnology, Terminator technology, and "life" patent monopolies. Meanwhile, unnoticed by policy-makers, the nanotech industry is acquiring the same broad-spectrum patents that have spurred monopoly in biotechnology. Patenting at the nano-scale can mean monopolizing the basic elements that make life possible. Could nanotechnologists patent elements in the Periodic Table? It wouldn't be the first time!
What is nanotechnology? A nano is a measurement equaling one-billionth of a meter. Nanotechnology is a very broad term referring to an array of technologies encompassing everything from the manufacture of nano-scale materials (the commercial manufacture of bulk sprays, powders and coatings is already big business), to the fabrication of structures utilizing the quantum physics of nano-scale materials, to the futuristic and hotly debated goal of creating self-replicating nano-robots. Some argue that self-replicating nano-machinery is beyond the realm of possibility while others, including ETC group, believe that the real question is not if, but when. It is clear that every industry and technology will be affected by nanotechnology in the future. ETC group is completing a kit for civil society organizations and policy makers on nanotechnology for release in April/May.
Summit plans miss mark: Two weeks of meetings begin at the United Nations today to prepare for the World Summit on Sustainable Development (WSSD). The Heads of State summit, scheduled for Johannesburg, South Africa (Aug. 26 - Sept. 4) will review the embarrassing lack of progress in achieving a sustainable environment and economy since the 1992 "Earth Summit" in Rio de Janeiro. In the ten years since Rio, governments and civil society activists have seen biotechnology and intellectual property move from the wings to centre stage in debates over world food and environmental security. The New York negotiations will talk about both "life" patent monopolies and the risks involved in GM crop contamination. Governments have neither nanotechnology nor material patents on their agenda. As usual, they are running a decade behind reality.
From "life" patenting to ...? The starting gun for the privatization of what eventually became known as biotechnology went off in 1980 when the US Supreme Court decided, in a 5-4 decision, that an oil-guzzling microbe developed by General Electric was patentable. The US court's verdict signaled to the chemical and pharmaceutical industries that the world's most commercially important patent regime was open to patenting any and all forms of life.
Two decades later, many patent attorneys would concede that "life" patents are in chaos. Forty-six percent of all biotech patents challenged in US courts are overturned. At an average cost, per litigant, of $1.5 million, patent lawsuits are the fastest growing item on court dockets in the USA and many start-up biotech "boutiques" now allocate more money to intellectual property lawyers than to their scientists. (See ETC Communique #73, "New Enclosures", November/December, 2001.)i
That even the Gene Giants are finding patents painful gives civil society organizations small solace. CSOs (including some environmentalists who sat on their hands in 1980 because they were persuaded that the patented oil-eating microbe would combat oil spills - it never did) have watched in horror as the scope of biotech patents has exploded beyond all recognition. Twenty years down the road, there are patents on genes, gene sequences, entire species, on human cell lines and on indigenous knowledge. Patents have been granted to companies for uses that have been known for thousands of years and biopirates are laying claim to so-called "inventions" they scooped up from farmers' markets and rain forests. The thievery has become a global pandemic.
Patents on Non-Life: But biotech's critics have become so focused on the "no patents on life" campaign (a campaign to which ETC group fully subscribes) that all of us have overlooked the patents "underneath". The fast-moving nanotechnology industry is busily acquiring patents on the material building blocks and processes that make everything from dams to DNA. Because nanotech spends little time talking about living materials, few have realized the implications for health, agriculture and the environment if fundamental patents on nature's raw materials go unopposed.
From bio to nano: In a speech last April, a lobbyist with the US Biotechnology Industry Organization (BIO) , ventured boldly onto the turf of the Gene Giant's nano neighbours: "It is true that one cannot patent an element found in its natural form; however," said Lila Feisee, "if you create a purified form of it that has industrial uses - say, neon - you can certainly secure a patent."ii Feisee, BIO's Director for Government Relations and Intellectual Property, should know. The biotech industry has turned the isolation and purification of known genes (for the purpose of patenting) into an art form.
"Elements, my dear Watson ... and Crick": Of the roughly 112 known elements so far (a handful come and go or are in dispute), 22 elements are human-made. There will be more. Are they patentable? Glenn Seaborg, the American who won a Nobel Prize for Physics in 1951, couldn't see why not. He "invented" Americium #95 and acquired US patent #3,156,523 on November 10th, 1964. Seaborg's decision to patent contrasts with the explicit choice made by Pierre and Marie Curie of France: they opted not to patent Radium #88 or Polonium #84. For their selfless decision, the Curies were awarded the Davy Medal by London's Royal Society 99 years ago. Ironically, Seaborg marked the Curie's stand by naming his second "invented" element, Curium #96, after them - U.S. patent # 3,161,462 granted December 15th, 1964. Years after their initial discovery of Radium, Marie Curie reflected on the "fortune" she and her husband sacrificed to keep the element in the public domain. "Yet," the Nobel Laureate concluded, "I still believe that we have done right."iii
Sure enough, there exists a general doctrine in patent law that products of nature cannot be patented. The prohibition on product of nature patents was rendered vacuous by the 1980 Supreme Court decision. Today, with the world's largest corporations gearing up to work down at the nano-level, it is only a matter of time before industry convinces patent examiners that the genetically-engineered microbe of twenty-two years ago is no different from the atomically-engineered elements of today. Between nuclear colliders, atomic force microscopes, and cameras that can photograph light as it meanders through a retina, the nanotech industry will be in a political position to argue that any tinkering with the elemental products of nature is patent-worthy.
Little patents with a giant reach: But nanotech is also following biotech's passion for sweeping product and process patent claims that could tie up the technologies involved and give a handful of giants monopoly over the tools that will be used to manufacture everything. Everything includes the raw materials essential to life.
Buckyballs: Consider C Sixty Inc., a Toronto, Canada-based start-up nanotech enterprise, that seems to be rapidly cornering the market on a rare form of carbon first discovered in 1985.iv Carbon is an essential component to everything living on earth. This remarkable carbon was named "Buckminsterfullerene" (or "Fullerene" or "Buckyball") because of its geodesic (soccer ball) shape.v Essentially, buckyballs are a hollow sphere comprised of 60 carbon atoms. By the mid-90s, fullerene compounds were seen to have vast potential in drug delivery related to the treatment of disease. A series of patents was filed, five of which have been granted. The patents are the core assets of C Sixty Inc. As Uri Sagman, C Sixty's CEO told NanotechPlanet, "If people want to get in this game they have to deal with us." Sagman stresses, "We're, in a true sense, a platform company that is able to license out enabling technology and partner [with other drug development companies]"vi
Buckytubes: C Sixty Inc. is not alone in exploiting carbon. Carbon Nanotechnology Inc. (CNI - Houston, Texas) has an exclusive license for a broad array of technologies developed by Dr. Rick Smalley at Rice University. Smalley, too, won a Nobel Prize for Physics and co-founded CNI on the side. The existing patents (and applications) cover the four commercially viable routes to making and using - not Buckyballs but Buckytubes (nanotubes). Nano-scale tubes of carbon atoms have an enormous range of pharmaceutical and other uses. Buckytubes are the most important material in nanotechnology today.vii
Blocking the view: Not all the nanotech work is on carbon atoms. Microvision, another U.S. "nano-niche" (the nano industry's equivalent to biotech's "boutiques") start-up in Bothel, Washington, uses nano-scale technologies for visual display and image capture devices. So far, the company claims more than 150 patents but many more are in the pipeline. Steve Willey, executive vice president told Small Times, "At some point you corner an industry. ... There is value in getting critical mass." Casey Tegreene, who handles the company's patents, agrees, "Building an unassailable patent portfolio is an important component of our overall growth strategy...''viii
Chips off a new block: Nanotechnology is also making huge inroads into the informatics industry and much work is being done with nano-scale materials for semiconductors. One of the lead "nano-nichers" in this field is Quantum Dot Corporation (Hayward, California). QDC is the world leader in nanocrystal technology commercialization for use in biological, biochemical, and biomedical applications. The company's strategy is to achieve broad-spectrum coverage of semiconductor nanocrystal technologies. "We continue to dedicate our efforts to compiling, generating, and protecting pioneering technology...," QDC states.ix
As it was with the biotech "boutiques", however, nanotech's "nano-nichers" are going to have to scramble to win patent dominance in manufacture. QDC is rubbing elbows with giants like Hewlett-Packard in the semiconductors market and H-P is working in a consortium to develop molecular switches and other nano-scale materials that could transform the informatics industry quickly. One of its molecular patents was ranked by MIT's Technology Review as among the five most important patents of 2000. As is increasingly the case, many of the nanotech initiatives are being bankrolled by the US Defense Advanced Research Projects Agency (DARPA).x
Patently worried: "Our big issues are making sure that the USPTO [US Patent and Trademark Office] understands nanotechnology, so when people come with their patents, examiners understand what are reasonable boundaries," says Mark Modzelewski, of the NanoBusiness Alliance (a New York-headquartered industry trade association). "We would not like to see, within nanotechnology patents, some of the things we've seen in recent technology waves, where there have been concept patents awarded, which allow people to lock up huge areas. That's a real fear for us in nanotechnology."xi
Those of us in advocacy groups and others in civil society who have been concerned about GMOs and "life" patents may still regard the sudden rise of nanotechnology as extraneous to our main concerns. Not for long. According to the NanoBusiness Alliance, nearly half of the pharmaceutical industry market (or around $180 billion per annum) will be based on nanotechnology within 15 years. NBA believes that 22% of the potential business for nanotech will be linked to biotechnology in the life sciences.xii A market study just released by CMP Cientifica (an investment group in Madrid, Spain) sees agriculture as next in line after medicine as a potential market for nanotech: "...genetic engineering methods are moving along quite nicely without any need to call themselves nanotechnology."xiii Likewise, nanotech is progressing quite nicely without any need to tell the world that it is tinkering with the fundamentals of all life and matter.
Perhaps the best opportunity for governments and civil society to come to grips with new technologies such as nanotech and new monopoly control threats such as patents on elements in the Periodic Table, will be during the Johannesburg Summit this August. Among the proposals that should be debated by governments in New York this week and next is an International Convention for the Evaluation of New Technologies (ICENT).
For further information:
The Action Group on Erosion, Technology and Concentration, formerly RAFI, is an international civil society organization headquartered in Canada. The ETC group is dedicated to the advancement of cultural and ecological diversity and human rights. www.etcgroup.org. ETC group wishes to acknowledge and thank Mathieu Charron, a valued volunteer, for his considerable contribution to the research involved in this report.
i See ETC group website: http://www.etcgroup.org/article.asp?newsid=271.
ii Lila Feisee, Director for Government Relations and Intellectual Property, Biotechnology Industry Organization, in a speech entitled, "Anything Under the Sun Made by Man," delivered at Case Western Reserve School of Law, April 11, 2001.
iii For more information, see:
http://physics.nist.gov/GenInt/Curie/1921.html. Marie Curie made her speech in the USA in 1921 on a fundraising trip for her Radium institute.
iv See CSixty's website: www.csixty.com/mission.
v Buckminster Fuller, an engineer and architect who died in 1983, promoted the geodesic dome as the ideal design for shelter construction.
vi B. Allen, "CSixty pioneers drug delivery techniques using buckyballs," NanotechPlanet, January 16, 2002; available at
vii "Carbon Nanotechnologies, Inc. licenses buckytube production process to DuPont," NanotechPlanet, January 9, 2002, available at
www.nanotech-planet.com; see also Carbon Nanotechnologies Inc.'s website: www.cnanotech.com/4-2_intellectual.cfm.
viii J. McIntyre, "Microvision piles up patents in retinal display technology" Small Times, February 20, 2002; available at www.smalltimes.com.
ix From Quantum Dot's company website, www.qdots.com/new/corporate/ip.html.
x Hewlett-Packard news release, "GP, UCLA collaboration receives key molecular electronics patent", January 23, 2002; available at
xi D. Brown, "U.S. Patent examiners may not know enough about nanotech," Small Times, February 4, 2002, www.smalltimes.com.
xii N. Tinker, 2001 Business of Nanotech Survey, NanoBusiness Alliance, October 2001, p.16.
xiii CMP Cientifica, March 11, 2002, p.23. www.CMP-Cientifica.com.
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