Is genetic modification of crops really new? One of the oddest features of the global biotechnology debate is the sight of supporters of this revolutionary art claiming it is not new at all:

the genetic modification and enhancement of foods is simply a modern version of age-old techniques used by farmers (Popeo 2000);

Farmers have been genetically modifying crop plants for centuries (C.S. Prakash, quoted in Brumas 2000);

In fact, farmers have been genetically modifying crops for centuries. Long before Mendel taught the world about plant genes, farmers knew that if they planted only seeds from the hardiest crops, and the plants that had characteristics they preferred (which were caused by genetic mutations), they could change the whole field over a few years. In this way the corn we eat today bears absolutely no resemblance whatsoever to the plant that transferred from Mexico to our native American ancestors. It has become literally a different species because of this "genetic engineering" (Cullen 1999)

It is quite true that most economic plants have been heavily manipulated by humans for their own purposes. Moreover, it is part of nature for genes to be smuggled between species, and even between biological kingdoms. However, within a few years of the first experiments in genetic modification, it became clear that the new technology would play a pivotal role in something utterly revolutionary : establishing proprietary rights over DNA itself, and in such a way as to greatly privilege well-funded corporations. Virtually anyone involved in biotechnology is aware of this radical development, although public statements often seek to obscure it. ^[FN1] Biotechnologists may be right, in a sense, when they say "humans have been modifying economic plants for millennia," but Lancaster textile mill owners in 1800 may just as well have said that humans had been weaving cloth for millennia.

Despite the profound economic, political, and ethical questions involved, there was little public or official debate over the advent of gene ownership. Instead, proprietary rights to genes emerged from a process of Chinese whispers spanning several decades. In theory, living things or "products of nature" have never been patentable. The classic statement of this principal came in a 1889 case in which a patent was denied on a plant fiber that "nature had intended to be equally for the use of all men" (Ex parte Latimer, 1889 Dec. Comm'r Pat. 123 (Comm'r Patents 1889). The principal was reaffirmed in 1948, when the Supreme Court invalidated a patent for a mixed bacterial culture on the ground that the invention amounted to "no more than the discovery of some of the handiwork of nature" and was therefore "part of the storehouse of knowledge of all men" (Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948)). The principal was even underscored in the 1980 Chakrabarty decision that opened the door to plant patenting: the "laws of nature, physical phenomena, and abstract ideas" are unpatentable, as is "a new plant found in the wild" (Burger 1980). There has long been an exception for artificially purified forms of naturally occurring products, first codified in early 20th century rulings allowing a patents on purified aspirin and adrenaline (see Chisum 1991), but there would seem to be a world of difference between patenting purified aspirin and patenting an actual plant or gene. Proprietary rights over plants invented by breeders came mainly through the Plant Protection Act (1930) and the Plant Variety Protection Act (1970); these rights pertained to whole plants that had not existed previously in nature, and there were various limitations that regular (utility) patents did not have (Hamilton 1993).

But the ink was barely dry on the Plant Variety Protection Act before biologists were beginning the direct manipulation of the genomes that would require a rethinking of what an invented organism was. In the early 1970s, General Electric biologist Ananda Chakrabarty used early methods of genetic manipulation to transform a Pseudomonas bacterium so that it would degrade crude oil. The patent office allowed his claim on the method used to transfer genes, but disallowed his claim on the bacteria itself on the grounds that microorganisms were "products of nature." In Diamond vs. Chakrabarty (Diamond being the commissioner of patents), Burger's majority opinion in a 5-4 decision held that the micro-organism was patentable because it "is not a hitherto unknown natural phenomenon, but a nonnaturally occurring manufacture or composition of matter -- a product of human ingenuity."

The Chakrabarty ruling took on particular significance because the "purification exception" had just been extended to biological products. In 1979, the Court of Customs and Patent Appeals held that a particular pure bacterial culture was a "product of a microbiologist," rather than a product of nature (Golden 2001). DNA sequences are biological products, and subsequent rulings have shown them to be no exception. The combined result of the two rulings was to render the "product of nature" doctrine "effectively toothless, because biotechnology by nature involves isolating and replicating biological materials to produce 'unnatural' levels of purity" (Golden 2001). Before a DNA segment (gene, promoter, etc.) can be transferred or altered, it must be isolated and cloned, which leaves it in an artificially purified form eligible for patenting. As Golden (2001) puts it, "with respect to biotechnology, the century-old 'purification exception' tends to swallow the rule."

What ensued was a remarkable scramble to patent genetics. In some cases, a genetic product was actually invented: examples are the Flavr-Savr antisense PG gene and Monsanto's synthesized Bt gene (Martineau 2001; Charles 2001). But in the great majority of cases, genes and promoters were merely located and purified. The process has been likened to the gold rush (Rai 2000) or to the Oklahoma Land Run, as in this description Jerry Caulder, who left Monsanto to form Mycogen:

Like the early US railroads, which made their profits selling land rather than by carrying passengers of freight, Caulder decided the near-term profits in agricultural biotechnology lay in intellectual real estate. "My strategy was simple," Caulder says. "Let's find as many genes as we can and patent them. We'd jump ahead and build intellectual property." Caulder saw the early competition in biotechnology as a kind of Oklahoma Land Run, a race for property rights" (Charles 2001:48).

Yet the analogy is doubly deceptive. The Oklahoma Land Run was open to all, whereas the hallmark of gene patenting is its exclusive nature: the high laboratory and legal expenses involved confer an insuperable advantage to well-funded corporations. Moreover, plots of land are unique, and ownership of one does not keep a different buyer from owning another; a forty-niner gained exclusive rights only to gold on his claim, not to gold on other similar land or to gold itself. In contrast, US patent #5,352,605 gives Monsanto rights to the biotechnological use of every 35S promoter in every strand of DNA in every country where the patent is recognized. In sum,

what might have seemed to be entrenched doctrines of patent law prior to 1980 have shown remarkable flexibility in the face of the biotechnology industry's craving for expansive intellectual property rights. The patentability of most basic biotechnological products is now well established, and supposedly central requirements such as utility and nonobviousness have often merely nibbled at the margins of patentability's broad realm (Golden 2001).

Enormous pressure is also being applied to internationalize such proprietary rights. In the 1994 Uruguay Round of GATT, which established the World Trade Organization, 120 countries agreed to harmonize Intellectual Property Rights by adopting patent or other sui generis protection system. Included in the list were India and several other developing countries that were soon to become crucial in the progress of the debate of biotechnology.

Is genetic modification really something new? It is beginning to seem that what is truly revolutionary about this technology is not its encroachment on God or its threat to the environment, but its crucial role in facilitating ownership of DNA.

BRUMAS, MICHAEL. 2000. Tuskegee geneticist's study of gene-altered food carries on Carver's tradition. Newhouse News, March 3. http://www.agbioworld.org/biotech_info/articles/interviews/tuskegee.html

CHISUM, DONALD S. 1991. Chisum on Patents. 1.02[9] .

CULLEN, MARK 1999. Take Care in Interpreting Scientific Studies. St. Louis Post-Dispatch, November 10.

FOSTER, SCARLETT LEE. 2000. Biotechnology has been subjected to thousands of lab and field tests. St. Louis Post-Dispatch, May 20.

GOLDEN, JOHN M. 2001. Biotechnology, Technology Policy, and Patentability: Natural Products and Invention in the American System. Emory Law Journal 50:101-.

HAMILTON, NEIL D. 1993. Who Owns Dinner? Evolving Legal Mechanisms for Ownership of Plant Genetic Resources. Tulsa Law Journal 28:587

POPEO, DANIEL J. 2000. In all fairness. Washington Legal Foundation website, January 24. http://www.wlf.org/advertorials/luddites.htm