A creature as majestic as a whale, you might think, should have no owner. Yet it turns out that certain snippets of the DNA that makes a sperm whale a sperm whale are actually the subjects of patents—meaning that private entities have exclusive rights to their use for research and development. The same goes for countless other marine species. And new research shows that a single German chemical company owns 47 percent of patented marine gene sequences.
A just-published paper in Science Advances finds that 862 separate species of marine life have genetic patents associated with them. “It’s everything from microorganisms to fish species,” says lead author Robert Blasiak, a conservation researcher at the University of Stockholm who was shocked to find out how many genetic sequences in the ocean were patented. “Even iconic species”—like plankton, manta rays, and yes, sperm whales. Of some 13,000 genetic sequences targeted by patents, nearly half are the intellectual property of a company called Baden Aniline and Soda Factory (BASF).
BASF is a giant in its field, considered the largest chemical production company on Earth according to Chemical & Engineering News. And it seems the company is using these marine patents in order to open up avenues of research—potentially lucrative ones. For example, Blasiak notes that BASF has been harnessing the genes of some tiny aquatic lifeforms in an effort to produce designer health foods: “They’ve been splicing genes from different microorganisms into grapeseed and canola, then taking the seeds and seeing if they can produce oils that contain omega-3 fatty acids,” he says.
Colette Wabnitz, Blasiak’s coauthor and an ecosystem scientist at the University of British Columbia, adds that “some of these microorganisms come from the deep sea, particularly unique areas of the ocean. The adaptation rates tend to be quite quick.” By laying claim to stretches of these adaptive organisms’ DNA, she says, BASF is paving the way for future innovation in the pharmaceutical and agricultural sectors.
But the trend of patenting genetic diversity at sea does not end with BASF. Blasiak and Wabnitz’s research indicates that patent holders from a mere 10 countries—led by Germany, the United States and Japan—control 98 percent of the patented sequences, while 165 countries have no marine life patents whatsoever to their names. Given that many of these sequences hold potential worldwide benefits, Blasiak and Weibnitz are perturbed by the disparity in their distribution.
“If there’s just a small number of countries benefitting, that’s not optimal,” says Blasiak. “This is stuff we can all benefit from.”
“It definitely raises equity questions,” Wabnitz agrees.
In the past, cases about patenting genes have reached the highest courts. In a unanimous ruling of 2013, the U.S. Supreme Court displayed a willingness to combat the corporate patenting of DNA, asserting unanimously that snippets of human DNA cannot be patented. This decision allowed human genes useful in diagnosing breast and ovarian cancer to escape the stranglehold of a corporate monopoly, and gave rise to an international conversation on the ethics of biological patents.
For areas beyond national jurisdiction like the high seas, though, there is currently little legal precedent to draw on—“very patchwork legislation,” Blasiak says. The Nagoya Protocol, ratified by 97 parties and in force as of 2014, attempted to lay out a system of standards for monetizing biodiversity within national jurisdictions. But applying that protocol to the high seas isn’t really feasible, says University of California at Los Angeles environmental law scholar James Salzman, because the open ocean is jurisdiction-less.
“The heart of the Nagoya Protocol is that you have to have mutually agreed terms,” Salzman says. “But whom do you negotiate with on the high seas?” He thinks one way to confront this problem would be by invoking the concept of “common heritage of mankind,” a legal status which implies certain property rights to all countries of the world, not merely those countries with the resources to extract the property in question.
“With high seas and fisheries,” Salzman says, “you catch the fish and it’s yours. You have total title to it. If it’s common heritage of mankind, though, if you catch the fish, yeah it’s your fish, but there are also [larger-scale] property rights that are somehow attached to it.” He says the most useful example for the international community to heed as it considers gene patents might be the International Seabed Authority, in operation since 1994 as a nonpartisan overseer of seabed mining across the globe.
The Seabed Authority has the power to tax nations for their seabed mining and distribute the revenue among other countries not equipped to mine the seas. Could this sort of redistribution scheme be applied to genetic research as well? Potentially—but it won’t be easy, says Salzman. He points out that the U.S. has for decades refused to acknowledge the legitimacy of the International Seabed Authority, which speaks to the inflammatory nature of these sorts of ideas.
“Not every country has the resources to identify biodiversity and develop it,” Salzman says. “But if it’s common heritage of mankind, each one still has some kind of property stake, and so they should have some kind of profit-sharing." He adds: "You can see how controversial that would be.”
Later this year, the United Nations will be holding a new round of talks to confront the issue of genetic patenting on the high seas, with the goal of increasing research equity and the fair distribution of valuable biological findings. Blasiak says making progress will take serious effort. “Now that the UN is negotiating this new agreement, it’s Mission: Impossible,” he says, referring to the body’s reputation for being slow to come to a consensus.
Wabnitz stresses the value of having representatives from all sectors at the table, and hopes that the various parties will be able to “distinguish between commercial and noncommercial research,” she says. “It’s one thing if people want to benefit from a particular research output. It’s another when you’re contributing to the wealth of knowledge we have (as a global community).”
At the end of the day, Salzman says the key question facing the UN is how the mining of biodiversity on the high seas should be regarded in the eyes of property law. “Is it the rule of capture—is it like fish? Or is it like deep seabed mining? Or is it something else?” he muses.
For Blasiak and other biodiversity advocates, what's clear is that the current situation on the high seas cannot be sustained. “There should be a sense of urgency with these negotiations,” Blasiak says. “The status quo is unacceptable.”