New Clear Vision

Supreme Court Ruling Could Change Debate Over Transgenic Crops

by Devon G. Peña

In a historic 9-0 ruling on June 13th, the Supreme Court of the U.S. (SCOTUS) rejected the patent claims of a private corporation, Myriad Genetics, which claimed that it held ownership of a gene that is associated with breast cancer. Use this link for the full text of the ruling: Association for Molecular Pathology, et al v. Myriad Genetics, et al.

The rare unanimous opinion was actually written by Justice Clarence Thomas who firmly rejected Myriad’s assertion that the DNA it isolated from the human body for its tests were patentable. Explaining the ruling for the court, Justice Thomas wrote: “We hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” Myriad Genetics patented the genes sequence in question — BRCA1 and BRCA2 — in 1995.

Myriad, which is now based in Salt Lake City, Utah, had patented the gene based on research conducted by Nary Clair King, at the time a professor at University of California-Berkeley and now a University of Washington Professor of Genome Sciences.

The decision has profound implications and no least of all because the original research by Dr. King had been funded by public taxes. As a member of the Board of Directors of the Council for Responsible Genetics (CRG), I recall that we opposed this patent as a violation of the public interest and as likely to interfere with research on breast cancer — both of our positions have been affirmed by the SCOTUS ruling. The CRG Board, which included the illustrious Phil Bereano, recently retired from UW, was 20 years ahead of what will now be the extant policymaking and ethical thinking on this issue.

Before the ruling, Myriad held a monopoly over the use of the BRCA1 gene and it restricted the use of data it gained from sales of its testing services.  There are countless stories of women who suffered additional costs and in some cases lost their lives to breast cancer as a result of the Myriad BRCA1 monopoly as was recently revealed on an episode of Democracy Now! during an interview with Lisbeth Ceriani, a mother and survivor diagnosed with second stage breast cancer in May 2008 and one of the plaintiffs behind the lawsuit that led to the SCOTUS ruling.

The ruling leaves many issues unresolved and there was also a partial victory for the biotechnology privateers – the ruling let stand ownership of “synthetic” DNA. A key unresolved issue is whether patents can be issued for any invention — synthetic or otherwise — that derives from scientific research done by research faculty scientists employed by public universities and whose work is funded by taxpayers or from public funds allocated by the National Institutes of Health, National Science Foundation, and other similar taxpayer-funded agencies.

According to Phil Bereano — in an email to the UW Faculty Issues and Concerns listserv — this is also a victory for the American Civil Liberties Union (ACLU) which led the legal challenge “based on the work of those of us who have been arguing and agitating since the 1980s that patenting of genes is wrong – immoral and contrary to the patent law.”

Moreover, our own university has been complicit in the promotion of this patenting regime and patenting of nature. Again, Bereano: “…as far as i know, the UW never questioned gene patenting until the ACLU put together a coalition (women’s health people, scientists whose research was blocked, etc). And it is likely that the UW filed patent applications for genes discovered on campus that hadn’t been pre-sold to corporate funders (under the Bayh-Dole Act).”

Bereano continued stating in the email that: “…the US Patent Office, like the other branches of government are being subservient to corporate interests rather than the public interest… The Council for Responsible Genetics developed and published a statement against gene patenting 30 years ago, the world’s first civil society organization to do so.”

My first question is: Will the SCOTUS eventually realize that the same logic should apply to the patenting of seeds and other germplasm and biological materials used by Monsanto and the other commercial agricultural biotechnology giants?

Indirectly responding to this question, Bereano observes that: “Peasant organizations and farmers around the world (who have perfected and nurtured the world’s useful gene pool long before Mary Claire King or any of us were born) may now be able to try to stop the biopiracy that results when Western scientists and corporations appropriate genes from valuable crop plants and try to establish private monopolies over food supplies.”

Given the recent decisions by SCOTUS affirming the right of Monsanto to recover damages from farmers who save the company’s patented seeds, activists await a new case to reverse these troubling trends in support of the patenting of life. The court seems mired in a quicksand of contradictions. We certainly live in interesting times.

Devon G. Peña, Ph.D., is a lifelong activist in the environmental justice and resilient agriculture movements, and is Professor of American Ethnic Studies, Anthropology, and Environmental Studies at the University of Washington in Seattle. His books include Mexican Americans and the Environment: Tierra y Vida (2005) and the edited volume Chicano Culture, Ecology, Politics: Subversive Kin (1998). Dr. Peña is the founding editor of the Environmental & Food Justice blog, and is a Contributing Author for New Clear Vision.