Can Someone Explain Why Genes Are Patentable?

from the no,-seriously dept

A few weeks ago, we wrote about the crazy situation with the patents around tests for the disease Canavan. It’s a rare genetic disease, and a group of patients predisposed to the disease got together, helped push for research, and gave DNA samples to researchers to help find the gene. The researchers who found the specific gene decided to patent it, and are making it quite expensive to test for the gene. Michael Crichton, who has joined the ranks of folks pointing out the flaws of the patent system has another opinion piece in the NY Times that discusses the Canavan situation and rips apart the idea that genes should ever have been patented:

“Humans share mostly the same genes. The same genes are found in other animals as well. Our genetic makeup represents the common heritage of all life on earth. You can’t patent snow, eagles or gravity, and you shouldn’t be able to patent genes, either. Yet by now one-fifth of the genes in your body are privately owned.

The results have been disastrous. Ordinarily, we imagine patents promote innovation, but that’s because most patents are granted for human inventions. Genes aren’t human inventions, they are features of the natural world. As a result these patents can be used to block innovation, and hurt patient care….

Countries that don’t have gene patents actually offer better gene testing than we do, because when multiple labs are allowed to do testing, more mutations are discovered, leading to higher-quality tests…. When SARS was spreading across the globe, medical researchers hesitated to study it — because of patent concerns. There is no clearer indication that gene patents block innovation, inhibit research and put us all at risk.

It goes on along the same lines. What’s unclear is why anyone ever decided that genes should be patented. You can sort of understand why courts or patent examiners would think software is patentable (though, if you understand software, that often seems more questionable). But, the idea that genes should be patentable makes almost no sense at all.

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Can Someone Explain Why Genes Are Patentable?”

Subscribe: RSS Leave a comment
Noel Le (user link) says:

Dr. Watson

Mr. Masnick,

Look up the history between Dr. James Watson and the NIH. Watson, as you may know, received the Nobel Prize in the 1950s for his work on the structure of DNA. Decades later, he was tapped to head the Human Genome Project at the NIH. There was a falling out however when the NIH wanted to patent research resulting from the project. Watson consequently left after arguing that patenting genomic research would deter future progress in the field. Currently, he is one of the most vocal critics of genomic related patents.

Sanguine Dream says:

Hold on...

How do you patent somethat that you didn’t create?

Next we’ll have pro-lifers getting together to patent the X and Y chromosomes so women can’t get abortions without threat of “patent infringment” lawsuits.

This makes no sense. I would be willing to listen to someone arguing that vaccines are patentable due to the fact that someone worked to create that vaccine but to patent what is literally a random occourance (which in essence that is all a genetic disease is)?

Until someone can provide a good argument for patenting anything that is randomly generated by means that is still beyond human understanding I call bullsh!t on this “patent”.

dorpus says:

Re: Re: Re: Fear Mongering

Either way, his novels are riddled with comical factual inaccuracies. One of his early novels would have us believe that head trauma turns people into psychotic killing machines, that traffic reports on the radio reflect LA’s shocking slide into inhumanity, and evil computers are taking over LA’s hospitals. Is this writing worthy of a Harvard graduate?

But more to the point, the gene screening patents exist for a reason — to prevent fraudulent vendors from selling bogus “gene screening” tests.

martin says:

obvious and been done before

Surely it’s impossible to patent a naturally occuring gene. There must too much evidence for prior art. As for patenting testing for a gene; this surely falls under obviousness. Once a gene has been identified, it’s no big step of the imagination to think of testing for it. And any method of testing for a gene must also fall under obviousness. There can only be so many ways to test for a gene, such as testing for the presence of the protein it will code for, and the methods must be similar to tests that have been done for other genes. Also, not testing a patient for a specific gene because of a dubious patent, when identifying the gene could help the pateint surely goes against the hippocratic oath.

Deepa Raina says:

Gene Patents

How can something that is a part of a person be patented ? If we had patent laws before modern era, could someone have patented human blood, stomachs & other internal organs for “discovering” them ? It may sound absurd , but isn’t a gene part of human body. The researchers who’ve patented the gene- the gene is a part of some human being’s body, and its being there is in no way as a result of the researchers actions. Can someone be given a patent for discovering a new species too ? Or a star?This is infinitely illogical.

mcknuckles says:

Patents do encourage research in that they guarantee a return to a commercial product.

Take Amgen’s EPO (a protein that encourages growth of red blood cells). Another company tried to produce a drug that ran around it via the production method. Because Amgen had a patent on the gene sequence of the protein, it won an injunction. These things matter for companies that invest billions of dollars up front.

The key is to limit them in duration so that the discoverer (in this case of the sequence – I know, it sometimes gets complicated and people who shouldn’t hold the patent do) gets a return on investment but doesn’t receive monopolistic returns for too long. e.g. we’re all glad aspirin’s patent has expired.

Be happy you can’t copywrite genes.

For a good discussion, see this article.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...