New Enclosures: Why Civil Society and Governments Need to Look Beyond Life Patenting

Introduction

Over the past two decades, intellectual property (IP) has become a powerful and controversial legal tool to enhance corporate monopoly and protect market share. IP has been a major factor in the growth and consolidation of the biotechnology industry. In the 1980s the U.S. government took giant steps to accommodate the corporate desire to patent life by redefining laws to allow for exclusive monopoly patents on all biological products and processes. The once unthinkable idea that a gene, plant, animal, microorganism, and even human genetic material could be subject to monopoly control under intellectual property regimes is now standard practice in many industrialized countries. At the World Trade Organization and through bilateral trade agreements, the U.S. government and the biotech industry have lobbied vigorously to harmonize, expand, and enforce stronger IP laws worldwide.

Since the 1980s, a growing number of civil society organizations (CSOs) and some governments have denounced life patenting as technically invalid and/or fundamentally inequitable. CSO critics contend that monopoly control over plants, animals, and other life forms jeopardizes world food security, undermines conservation and use of biological diversity, and threatens to increase the economic insecurity of farming communities. Instead of promoting innovation, patents are stifling research, limiting competition, and thwarting new discoveries.

Ironically, some industrial corporations are also becoming disenchanted with intellectual property—although for very different reasons. In some cases, the complexity and costs of patents are becoming a giant headache for the corporations who stand to benefit the most from them. Intellectual property laws, especially as they apply to biological products and processes, are also becoming politically unpredictable and practically unreliable. It is in this context that industry is seeking alternative mechanisms—"New Enclosures"—to secure corporate control over biotechnology and other emerging technologies in the twenty-first century. ¹

This article examines a variety of New Enclosures and illustrates how they will supplement or replace intellectual property as a means of strengthening corporate dominance over new technologies, as well as how they threaten democracy and dissent. It also examines the emerging field of nanotechnology, and the need for civil society to broaden current advocacy campaigns beyond opposition to life patenting.

Why New Enclosures?

Intellectual Property Is Becoming Unpredictable

The application of patent law to living materials has resulted in immense and costly legal battles between corporations that are competing for ownership of strategic genes, traits, and biological processes. In order for patents to have economic value, corporations must defend their patent claims and enforce licensing requirements under civil law. The transaction costs are enormous:

• The legal costs of obtaining a patent approach $10,000 in the United States, and it typically costs $1.5 million per side to litigate a patent. ²
• In 2000, U.S.-based companies alone spent $4 billion on patent litigation. (That amount is approximately one-third of what all developing nations spent on agricultural research—both public and private.)
• Start-up biotech companies are reported to be budgeting as much for patent litigation as they are for research expenditures. But even the largest enterprises cannot be assured that the courts will be on their side. Twelve of every one hundred biotech patents end up in court. Forty-six per cent of all U.S. biotech patents that are challenged in court are overturned, and some legal experts suggest that a still-larger percentage would be rejected if they were challenged.

Intellectual Property Is Politically Unpredictable<

Compounding the functional uncertainties and costs associated with IP, industry is now discovering that the "patenting of life" is politically contentious. There is growing public awareness as well as high-profile efforts to question, reform, and resist the patenting of life. The industry and its investors are worried that mounting political opposition to patents could lead to legislative changes that threaten their IP. Media reports appear frequently in Europe and elsewhere...