Gene Cartels

Gene Cartels

Biotech Patents in the Age of Free Trade

Luigi Palombi

Starting with the 13th century, this book explores how patents have been used as an economic protectionist tool, developing and evolving to the point where thousands of patents have been ultimately granted not over inventions, but over isolated or purified biological materials. DNA, invented by no man and once thought to be ‘free to all men and reserved exclusively to none’, has become cartelised in the hands of multinational corporations. The author questions whether the continuing grant of patents can be justified when they are now used to suppress, rather than promote, research and development in the life sciences.

Chapter 7: Anything Under the Sun Made by Man

Luigi Palombi

Subjects: environment, biotechnology, innovation and technology, biotechnology, law - academic, biotechnology and pharmaceutical law, intellectual property law

Extract

Because that fragment is identical in primary structure in the DNA sequence to the original one that was put into the plasmid or virus it is said to be cloned and it really gives you then the ability to isolate in almost unlimited quantities and in relatively pure form a single DNA sequence or a single gene out of the originally very complex genome of an individual or of another species. John Shine, testimony to the Federal Court of Australia, 2 July 1996 Before a Congressional hearing on the proposed new patents legislation in 1951 PJ Federico, the principal draftsman of the Bill, testified: ‘under section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man’. About 30 years later, in Diamond v Chakrabarty, the US Supreme Court referred to this testimony in a footnote, and almost immediately his words became famous in patent law circles around the globe. Indeed as the Advocate General explained to the European Court of Justice in The Netherlands v European Parliament (2000) ECR 1-6229, only after Chakrabarty did ‘the biotechnological industry develop seriously’. DIAMOND, THE COMMISSIONER OF PATENTS v CHAKRABARTY (1980) 447 US 303 The phrase ‘anything under the sun made by man’ is synonymous with the word ‘new’ in section 101, and while what is new and what is not seems an easy distinction to make, deciding whether something is ‘made by man’, God or nature is not. Fortunately...

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