Our genes are stretches of DNA that we got from mom and dad. They have been with us since our beginning. Genes built our bodies. They exist in each and every one of our cells. It seems reasonable that our genes shouldn’t be anybody else’s property. Yet, many researchers, companies and institutions, own patent rights for them.
Issuing patents for genes has been common practice for many years. Human Genome Sciences and Incyte, leading biotech companies in gene research, own between them patents for over six hundred genes, and have already filed applications for another twelve thousand. Universities, hospitals and other drug companies are also filing patents for genes as fast as they can. The race is on, and at the present pace, within the next few years all human genes will be identified and patented.
A scientific landmark in that direction was reached on April 2000, when Dr. Craig Venter, chief scientist for the biotechnology startup Celera, announced that his company Celera finished the first sequencing of the human genome. Though knowledge of the genome sequence is not enough to identify its constituent genes, it is a powerful tool towards their discovery.
A month earlier, as if sensing Celera’s imminent achievement, President Clinton declared that he intended to make the findings of the tax-funded Human Genome Project freely available to researchers around the world. He also urged Celera and others to do the same.
Both announcements brought to the limelight the question of whether human genes should be patented or not.
The U.S. patent laws have been enacted by Congress, under its Constitutional grant of authority, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The US Code states: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.”
The fundamental requirement an invention must meet is novelty. The invention must be new, something that has never existed before. As philosopher Ayn Rand explains: “Patents pertain … to the creation of a specific object which did not exist in nature — an object which … may never have existed without its particular originator.”
Ayn Rand also makes explicit the fundamental difference between discovery and invention: “Patents pertain only to the practical application of knowledge…A discovery cannot be patented, only an invention. A scientific discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be exclusive property of the discoverer because he did not create it.” [Ayn Rand, Capitalism: The Unknown Ideal]
So the question to be considered is: Are human genes inventions or discoveries? If they are inventions, they should be patented. If they are discoveries, they should not.
Genes are stretches of DNA. They existed long before researchers started looking for them. Genes were neither invented nor created, but discovered. They are not new compositions of matter, as any biologist would readily acknowledge. Genes are natural structures, like apples or eyes, and therefore should not be the objects of patent protection.
If discovery were enough to secure a patent, then the person that discovers unknown organs, bones or cells in the human body would have the exclusive right to their use!
And how could someone hold exclusive right to genes that exist within the body of every other human being? This would be tantamount to having someone owning your genes!
If genes were patentable we would even need permission to have babies, for we would be using patented genes in the process! The absurdity of patents for genes is quite clear.
It is important to note, however, that even though patents should not apply to naturally occurring genes, they should apply to genes created by man and to inventions based on them. Inventions might include, but not be restricted to, the use of genes as drugs in therapy treatments or as markers in diagnostic tests. Engineered cells that produce insulin and human growth hormone are good examples of gene-based inventions. They are truly new compositions of matter and processes created by researchers, and therefore deserve patent protection.
But gene patenting has defenders. Dr. William Haseltine, president of Human Genome Sciences, argues that genes should be patented if they are identified for the first time: “In gene patenting, novelty requires that you show a new sequence of a gene.” But Dr. Haseltine equivocates: novelty does not require showing an unknown sequence, but creating a new one-one that has never existed before.
A stronger argument for securing gene’s patents is that they serve as an incentive for discovering genes. But is this incentive really needed? New gene-based drugs and treatments, which are already properly protected by patent rights, require the discovery of genes. Long established pharmaceutical companies as well as biotech newcomers are in intense pursuit of these drugs and treatments. Their drive for products and profit should be sufficient to assure that all genes will be discovered. Patent protection for genes is not needed to ensure progress as long as there is patent protection for gene-based inventions.
What is to be done then? The most urgent thing to do is to stop securing patents for genes. The following step is to review all patents for gene-based inventions already issued, and exclude natural gene sequences from the claim.
The importance of a properly formulated and justly enforced patent law cannot be overestimated. The foundation and progress of our technological civilization depends on it. Inventors and creators are the most productive human beings of all. Their right to their inventions is the recognition of their right to their lives. As Ayn Rand observes: “Patents are the legal implementation of the base of all property rights: a man’s right to the product of his mind.” But we must keep in mind that knowledge [of reality] cannot and should not be patented. The freedom and progress of mankind rest on upholding this principle consistently. Let’s keep our genes our own.
Please check the sequel to this article at where I explain why genes *should* be patented, and why I got it wrong.–David Holcberg
