What BASF’s 13,000 Patents Involving DNA of Sea Life Tell Us About the Future
by Heather Murphy / Sept. 17, 2018

“This is a California brown sea hare. It has some of the biggest brain cells in the animal kingdom.

And this is the bacteria shewanella oneidensis, which can live with or without oxygen.

What they share, beyond the possession of remarkable traits, is that their DNA is included among thousands of patents owned by BASF, which calls itself “the largest chemical producer in the world.” The German company has acquired nearly half of the 13,000 patents derived from 862 marine organisms genetic sequences, according to a study published in June.

Whether a single private entity should be able to set the direction of how the genes of so many living things are used was a piece of a broader debate at the United Nations this month. There, delegates from across the world were discussing the development of a global legal framework for genetic resources in the high seas, a vast realm outside any one nation’s control. For those interested in the future of innovation, inequality and even dairy alternatives, a closer look at what exactly is being patented offers intriguing hints.

Alvinella pompejana, a type of deep sea worm, can thrive at temperatures that would kill most living organisms. It has been used in skin creams — and sequences of its genes appear in 18 patents from not only BASF, but also a French research institution.

Genetic prospectors — a term some find offensive, while acknowledging there’s not a great alternative — have a range of motivations. Some are hoping to develop a novel treatment for cancer. Others want to create the next Botox. Most are looking for organisms with exceptional traits that might offer the missing piece in their new product. That is why patents are filled with“extremophiles,” known for doing well in extreme darkness, cold, acidity and other harsh environments, said Robert Blasiak, a researcher from the Stockholm Resilience Centre who was involved in the patent study.

“The sea squirt Ecteinascidia turbinata was utilized in the creation of Yondelis, a chemotherapy drug.”

But how can multiple entities patent the same worm — or snail? In most countries it’s not possible to patent “a product of nature.” But what companies and research institutions can do is patent a novel application of a given organism, or more specifically, its genes. “It often requires making these Frankenstein synthetic organisms; a little bit of DNA from a lot of different things,” said Mr. Blasiak. What that basically means is your cat or a coyote in your backyard cannot be patented. “But if you went out and created a transgenic coyote that no one has done before, then probably yes,” said Dr. Robert Cook-Deegan, a professor at the School for the Future of Innovation in Society at Arizona State University.

The purple sea urchin, below, is known for its regenerative properties, and its genetic sequences appear in patents from BASF; a German energy company; the American company Monsanto and a Japanese pharmaceutical company. But how many useful applications of a given organism can there really be?

Companies in 10 highly-developed countries (the three above, plus Norway, Britain, France, Denmark, Canada, Israel and the Netherlands) own 98 percent of patents involving marine organisms’ DNA, the study found. Ahead of the talks this week, some policymakers expressed concern that by the time the developing world has acquired the biotech equivalent of a high-speed connection, this new genetic internet will be bought up, fueling a new kind of global inequality. “This is really is a historic moment in the international law of the sea,” said Harriet Harden-Davies, a researcher the University of Wollongong who was involved in the talks at the U.N.

The counterargument, Ms. Harden-Davies explained, is that no one owns the high seas — and developing these products is a costly gamble. So why not incentivize innovation? Among patent applications that have gotten somewhere: a sea slug contributed to a lymphoma treatment, a sea squirt’s genes helped in a chemotherapy drug and a marine snail’s DNA were used to formulate a pain medication, Mr. Blasiak said. But most don’t ever make it to market. “Patents secure the underlying investments,” said a representative from BASF in an email.

Plus — when you look closely at some of these patents, it becomes clear that they don’t all exactly guarantee global domination. Take, for example, what has been referred to as “a patent on sperm whales.” What has actually been patented are gene sequences from the whales that could be used in the manufacturing of a dairy substitute.

The patent belongs to a Berkeley-based company called Perfect Day. Though oat milk’s ascension has demonstrated that anything is possible, the document itself reveals ambivalence about whether whale milk is the way to go. Here are some other animals whose genes are also cited in the patent: sheep, buffalo, camel, horse, donkey, lemur, panda, guinea pig, squirrel, bear, gorilla, mountain goat, wallaby, elephant, fox, lion, tiger, woolly mammoth and human.

“Alexandrium minutum is one of a number of types of algae that appear in patent applications.”

Omega-3 fatty acids are often promoted as good for one’s health. But one of the most reliable source of these fatty acids are wild fish that face overfishing. It’s often the marine microorganisms consumed by the fish that produce those nutrients. And so by modifying the genetic code of a Canola plant with DNA from those tiny organisms, BASF has begun experimenting with growing Omega-3 fatty acids on land., (The project is now in field trials.)

If technologies like these end up facilitating more sustainable food production, environmentalists and others who oppose genetically modified organisms may face a choice: continue to oppose these products or consider exceptions when the benefits are clear and large.”

“Fully 73 percent of the patents studied in the paper pertained to microbial species, which account for about 20 percent of marine life.”

Nearly Half the Patents on Marine Genes Belong to Just One Company
by Ryan P. Smith  /  June 13, 2018

“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).

“Thanks to their easily exploitable biochemical properties, microbial species are of special interest to companies like 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.

“Percentage of patents with international protection associated with MGRs that were registered over the period 1988–2017 by BASF”

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.” Wabnitz agrees: “It definitely raises equity questions.”

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.

“Timeline of the number of marine genetic sequences associated with claims for international patent protection.”

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.

“Patented organisms from deep sea hydrothermal vents”

“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.”

“Though most patented marine gene sequences come from microorganisms, the DNA of certain high-profile species—including the famous sperm whale—have been claimed by corporations as well.”

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).”

“Lab workers pierce the tissue around horseshoe crab hearts and drain 30% of their blood for a chemical found only in amoebocytes in its blood.”

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.”