Can Someone Explain Why Genes Are Patentable?

from the no,-seriously dept

Tue, Feb 13th 2007 11:42am — Mike Masnick

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.

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26 Comments

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Noel Le, 13 Feb 2007 @ 11:57am

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.
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- Bumbling old fool, 13 Feb 2007 @ 12:35pm
  
  Re: Dr. Watson
  Noel,
  
  While its really great for you that you happen to know Mike's last name, its REALLY annoying to see you refer to him by it here.
  
  (and yes, I am well aware that his full name is on the "about" page, but since the majority of the blogs readers will never read that page, the point is moot)
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Sanguine Dream, 13 Feb 2007 @ 11:59am

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".
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dorpus, 13 Feb 2007 @ 12:04pm

Fear Mongering
What do we expect from a med school dropout who writes sensationalist novels?

Nobody owns genes. This issue was clarified way back in 2001. Patents are issued only for commercial processes that screen for a gene.
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- comboman, 13 Feb 2007 @ 1:24pm
  
  Re: Fear Mongering
  What do we expect from a med school dropout who writes sensationalist novels?
  Michael Crichton has an M.D. from Harvard Medical School and practiced medicine before becoming a writer. Get your facts straight Dorpus (but what can we expect from a high school dropout who write sensationalist Techdirt posts).
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  - Anonymous Coward, 13 Feb 2007 @ 2:51pm
    
    Re: Re: Fear Mongering
    Ooh, Burn!
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  - anonymouse, 13 Feb 2007 @ 4:19pm
    
    Re: Re: Fear Mongering
    You're right that Crichton graduated from Harvard, but you're wrong about his practicing - he never practiced as a physician. Furthermore, the ONLY reason he was allowed to graduate was because he explicitly agreed not to practice. Yeah; he was that bad at medicine.
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    - dorpus, 13 Feb 2007 @ 4:35pm
      
      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.
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    - comboman, 14 Feb 2007 @ 10:22am
      
      Re: Re: Re: Fear Mongering
      Right, Harvard grants medical degrees to undeserving quacks all the time in exchange for promising not to practice medicine. If that were true, everyone with the money for tuition would have a medical degree. This is a lie created by the global warming nutcases to discredit him.
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      - happyrabo, 4 Feb 2010 @ 12:46pm
        
        Medical degrees and global warming?
        @comboman - What would Crichton's medical degree, or lack thereof, have to do with his qualifications for evaluating the work of climate scientists? Whether he has a medical degree or not, he's still not a climatologist.
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- dourpus, 13 Feb 2007 @ 10:10pm
  
  Re: Fear Mongering
  Nope...just more dorpus bull on techdirt.
  
  If genetics are ONLY patentable for 'screening' and dorpus wants to defend that position, I look forward to explaning how Monsanto can patent the genes of plants - then sue farmers who save seed.
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DittoBox, 13 Feb 2007 @ 12:07pm

Golden Rule
Classic golden-rulism.

Whoever has the gold, makes the rules. Gold and influence often increase at compound interest.
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Matt Bennett, 13 Feb 2007 @ 12:11pm

Now did they patent the gene, or the test for the gene? That IS a big difference.

Though as I understand it, you can de facto patent a gene by patenting all the related processes and enzymes used to manipulate it.

But why would that be considered non-obvious?
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Anonymous Coward, 13 Feb 2007 @ 12:55pm

With all these brainless, stupid, asenine decisions being made daily, I'm more content with my (our) decision not to have children - cause at this rate there certainly won't be much of a future.

Stop trying to conquer the world already!

Shame on you, people of planet Earth....
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Anonymous Lawyer, 13 Feb 2007 @ 1:17pm

> Shame on you, people of planet Earth....

You're going back to planet Vulcan, eh?
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Matt Bennett, 13 Feb 2007 @ 1:29pm

I've dropped out of better insitutions than you ever will!!!

Seriously, is dropping out of fricking medical school really so shameful? I mean, y'know, sometimes people don't cut it at MIT.
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proxy318, 13 Feb 2007 @ 1:31pm

Eagles
I'm going to patent eagles. I'll get 50 cents every time they mint a quarter. I'll be rich!
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Woohoo!, 13 Feb 2007 @ 2:50pm

I call Hair!
I patent Hair! All production and use of hair care products now profit me!
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Ha!, 13 Feb 2007 @ 2:54pm

I Win!
I patent strings! Try topping that!
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Benefacio, 13 Feb 2007 @ 3:10pm

Slavery?
Isn't claiming you own a part of my body slavery?
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Newob, 13 Feb 2007 @ 5:58pm

Prior art!
They patented gene screening tests? I call prior art! Everybody knows that women have been screening men's genes ever since sex was invented! Is there a patent on sex? Well then, case closed!
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Buzz, 13 Feb 2007 @ 10:19pm

WHAT??
I've said it before; I'll say it again: I should start suing people who look at my face. They have NO right to be perceiving it directly.
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Anonymous Coward, 13 Feb 2007 @ 10:46pm

Down in India, identification of a gene is considered as a mere discovery and treated as such...
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martin, 14 Feb 2007 @ 4:36am

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.
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Deepa Raina, 14 Feb 2007 @ 8:01am

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.
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mcknuckles, 14 Feb 2007 @ 2:07pm

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.
http://www.signalsmag.com/signalsmag.nsf/0/5BFF0C004DB8303F88256A390080AA36
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