Leading Article: New life in no man's land

TEN YEARS ago, scientists and philosophers were debating whether it could be right to 'play God' by using genetic engineering to create new kinds of plants and animals. That debate is now otiose. The earth already has a small but growing population of 'artificial' living things, in whose creation human beings had a hand. The question now is who shall be allowed to make money from bringing them into the world.

Hence the controversy, reported in our news pages today, surrounding an American patent awarded last year for a way of genetically engineering commercial cotton. There is much at stake. Exporting cotton gives work to hundreds of thousands of farmers. With greater resistance to disease and pests, crop yields will be higher; jeans manufacturers will pay more for blue cotton, produced by inserting genes from the indigo plant; and consumers will be keen to try the softer, warmer or more durable kinds of cotton fibre that may emerge in the coming years.

But a commercial issue remains unresolved: how the new cottons, and other genetically engineered plants and animals, shall be treated in patent law. Should companies have a 17-year monopoly right to charge royalties on such living things, when patent offices have refused to give them similar rights over old-fashioned hybrid plants and mongrel animals? Or should patent offices say that since engineered plants and animals are clever, new and useful, they should be as easy to patent as a new printing method or a car part?

The difficulty arises because existing patent law is based on a border between the worlds of nature and invention that has now become blurred. The effect on copyrights of the photocopier, the personal computer and the home hi-fi seem minor by comparison.

In the United States, the authorities have been broadly willing to grant patents on the living products of genetic engineering. Europe has been more reluctant. The 'Harvard mouse', a new species produced by scientists to be especially susceptible to cancer and therefore useful to cancer researchers, is earning royalties for its inventors on one side of the Atlantic while it remains the subject of expensive appeals and objections on the other. Ill feeling has also resulted from demands by University of Michigan researchers for royalties on the cystic fibrosis gene as used in medical research in Britain.

As a short-term measure, the European Patent Office in Munich has imposed an unofficial moratorium on the most controversial applications. But in the long term, scientists and patent lawyers will have to seek a balance between the need to encourage innovation by protecting those who invest in new technologies - the underlying reason for all patent law - and the ethical objectors. That balance will undoubtedly be elusive. But until it is found, these new kinds of life will be doomed to occupy a legal no man's land.