Wednesday, October 19, 2005


The Guardian has some cheery news:

Nearly a fifth of all human genes have been patented - the majority by private biotechnology companies, according to a survey of patent records published today.


Writing in the journal Science today, the researchers report that nearly 20% of the human genome, or 4,382 of the known 23, 688 human genes, have been patented, with over half owned by private companies. Around 63% of the patents are assigned to private firms, with one firm, Incyte Pharmaceuticals/Incyte Genomics, having intellectual property rights covering 2,000 human genes.
Patents, of course, imply certain rights. The right to exclude other researchers from working with the patented gene, for instance, or the right to charge them a licensing fee.

Over at Rhinocrisy, Saurabh explains the essential problem here:
[T]he breadth of the patents granted is far more in line with "privatization of the genome" than with protection of innovators' rights. Genes are informational; patents should be applied to, if anything, techniques that employ genes (e.g. using single nucleotide polymorphisms to identify disease susceptibility) rather than the genes themselves.
The pro-patent logic, as you might imagine, argues that IP rights are essential if companies are to remain competitive, innovative, and profitable. But again, that logic should apply to patents on techniques, and the creation of novel forms, not to raw natural materials.

If I understand the law properly, it agrees with me on that point. But there seem to be rather large loopholes for companies that claim a gene has some sort of unique commercial use, which can be a somewhat vague criterion.

Another concern of mine is that since all the interactions of genes within an organism are not entirely understood, a company that holds the patent on a specific gene could end up with unanticipated - and possibly dangerous - power and influence over medical discoveries that have nothing whatsoever to do with the commercial "usefulness" for which the patent was granted. How far will property rights extend in such a case (particularly at a time when the U.S. Supreme Court is very well stocked with corporate lawyers)? Beats me. But I think it's logical to assume that lawsuits over genetic patents will be common in years to come, and that the costs of litigation will be recouped - one way or another - from the public. And I also suspect that this orgy of patenting will ultimately stifle innovation, rather than increase it.

In closing, I'll remark that Thomas Jefferson, who was one of the founders of the U.S. Patent Office, felt that patents were not a natural right, but a social convenience that must benefit society or have no legal force:
Inventions...cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.


Thers said...

I got a good deal on your DNA, Phila. Every time you, uh, get happy, you now owe me a quarter in "royalties." I'm sorry but that is simply how the Invisible Hand works.

Phila said...

Isn't it a wonderful age we live in? A quick call to my brokers (Ropem and Ridem), and I was able to get your liver for a fraction of what it's worth to you.

If you intend to drink any single malts, or any other warming spiritous beverage, I'll hope you'll have the foresight to send me the fees for the essential detoxification services Bouphonia Livery Services provides. You wouldn't look quite as charming in yellow, I'm afraid.