Patent sought on 'synthetic life' / Terminator seed ban in Canada?

There is an article on the BBC website talking about a corporate scientist wanting to get a broad patent on the method they plan to use to create 'synthetic life'. The article pointed at the Ottawa-based ETC Group, so I contacted them as well.

This is one of those areas where my work in the technology law areas of PCT and my other interests intersect.

A private members bill C-448 opposing terminator seeds was tabled by Alex Atamanenko (British Columbia Southern Interior, NDP).

In my case I always try to separate the natural sciences (physics, biology, chemistry, etc) issues from the social sciences (economics, politics, law, etc) issues. This sometimes leads me to different conclusions than those who only look at the natural sciences in isolation.

For instance, my problem with GMO's isn't the natural sciences, but the social sciences. I believe that excessive exclusive rights (in this case in the form of patents) has lead to excessive release of science experiments into the wild. There is currently economic favouritism given to genetic manipulations over breeding techniques, and I believe the way to return these experiments to the labs where they belong is to revoke the exclusive rights.

In the case of terminator technology, I believe this is needed to minimize contamination from other genetic manipulations. I believe it is extremely dangerous to ban terminator seeds, and I oppose such a ban. I believe the right mechanism isn't banning terminators, but eradicating seed patents entirely. The most often cited problem with "terminator seeds" is its abuse to control farmers, but that is not a terminator seed problem but a seed patent problem. Rather than banning terminator seeds we should be eradicating seed patents.

Exclusive rights are intended to provide an economic incentive, via granting of an exclusive right. For things which we do not want to encourage, or which have alternative methods of providing incentives, exclusive rights should not exist. Exclusive rights should only extend to what is necessary to provide an incentive, never more. This would lead to the eradication of controversial techniques (patents on life, including seeds), as well as information/mental process patents (which economic studies have suggested that patents chill rather than provide incentive for innovation).

I have sent a letter to Mr. Alex Atamanenko suggesting that while I agree with the provision in his bill to exclude terminator seeds from patentability, I believe that the other aspects of his bill (making it illegal to "release, sell, import or use any terminator seed".) could though unintended consequences cause more harm than good to farmers rights and food security.

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Copy of my letter to Mr. Alex Atamanenko

Dear Mr. Alex Atamanenko,

I posted an article today to my BLOG where I referenced your bill. http://www.digital-copyright.ca/node/3999

While I agree with the intent of the bill, I disagree with part of the method used to solve the problem. I believe the bill -- if it were enacted as written -- would have harmful unintended consequences against the very issues (food security, farmers rights, etc) that this bill is intended to help.

You included the right tool, and if the modifications to the patent act were submitted alone then it would avoid the unintended consequences I am concerned with.

Rather than a ban on terminator technology I believe we need to eradicate the exclusive rights which provide excessive incentives for bringing science experiments out of the lab (where they belong) and prematurely into the commercial marketplace. We need to have parliamentarians looking at narrowing Canadian patent law to exclude specific areas. At the same time we need to be able to use technologies such as the terminator in order to keep experiments within the lab and to reduce the risk of any contaminations spreading.

Had Monsanto been using terminator technology for their Roundup Ready canola, the Percy Schmeiser contamination case would never have occurred. Had seeds not been patentable in Canada, the entire problem that this case exposed would not have been possible. http://www.percyschmeiser.com/

I believe we need to expand on the patent part of your proposal, as it is far too narrow to solve the underlying patent problem. It might be helpful to use the more modern European Patent Convention article 52 as a basis to expand upon Subsection 27(8) of Canada's patent act. http://www.european-patent-office.org/legal/epc/e/ar52.html

Canadian patent law has been severely lacking in this area, and in need of modernization now that Canada has expanded patents to things that could never have been conceived of at the time of the enactment of the patent act.

While the intent of article 52 was clear, the European Patent Office has been illegally granting patents in prohibited areas such as software (excluded under 52(2)c as "programs for computers"). There will need to be clarity provided by parliament to ensure that less-than-honest patent offices will not be able to get around exclusions. It is likely that CIPO would find a questionably legal way around your enhancement of Subsection 27(8).

Canada has unfortunately thus far taken the US lead to allow patents on "anything under the sun made by man". This now includes things which might be manipulated or discovered by humans, but not at all "made by man". While in the USA it is most often a lower court under regulatory capture by the patent industry that expands patentability, in Canada this excessive expansion has occurred unilaterally by CIPO through mis-interpreting Canadian law in the context of US court cases.

Access to Information Reply from Industry Canada
http://www.flora.ca/A-2004-00246/

I am an Ottawa area activist, and can meet with you in your Ottawa office any time to discuss this and related issues. While my profession is information technology, my passion is public policy and I specialize in the area of technology law (patents, copyright, trademarks, etc).

Russell McOrmond
[contact information removed]

More information about what I do and what groups I am involved with at http://www.flora.ca/

--
Russell McOrmond, Internet Consultant:
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