Apr
16
2013

A Letter to a Friend: Is Gene Patenting Wrong?

Oh! You got me started! So being at a biotech school, I am well aware of this issue. Of course, the question is, can we patent life? And more specifically, can we patent genes? Of course, if they are a product of nature, then no one could claim ownership of it, and thus, not patentable. However, this all changed in 1980 with Diamond v. Chakrabarty. The conclusion was that if something was modified in lab, in this case, a bacteria, then it was not considered natural and therefore, patentable.

Then we get to DNA patenting. As a general rule, raw products of nature are not patentable. But that is when it gets tricky. DNA patents that are isolated beyond the lab setting are not natural and thus, patentable. Of course, there is a regulations stating that if someone someone wants to get a patent that is a product of nature, the patent holder is required to deposit a sample of the new invention into one of 26 culture depositories.
So ultimately, I think that there are great arguments to both sides of the gene patenting argument. But before we explore that, let us look into it a little further. So we did mention that the sequences must be novel, and the product of the sequence must be specified. You also need to specify its use in nature and allow those skilled in the field to use the sequence for its stated purpose. But of course, the danger comes from the fact that the patent holder of the gene could jack up the price so high and essentially monopolize the market. They could do this because they would be able to use the product themselves. That is, their success does not depend on other biotech buying the use of their gene.
There are many difficulties. Ultimately, the goal is pro bono. However, if they do this and limit its proliferation, is it really going to help out the people? You essentially have just one side (the science division from that company) looking at those sequences and there is really no struggle among differing minds. Of course, tell that to the scientists and biotech; 20% of the human genome have been patented!
So of course you must have heard about Myriad Genetics. Their patents on BRCA-1 and BRCA-2. These are the gene sequences for susceptibility of breast and ovarian cancer. Many can argue that the technology lacks novelty, and of course, that is one of the requirements of a patent. The fact that Myriad wants full fucking control prevents other laboratories all over the world unable to even commence research for diagnostics or solutions. Why are people suffering? The fate of science and diagnostics lies on one greedy company.
Of course, there were great people meeting to counter this issue. They had a bunch of doctor’s groups in 2009 that amalgamated and sought to file a lawsuit in order to invalidate the patents owned by Myriad Genetics. Of course, this is allowed by patents. One of the things they argued was the fact that it was unconstitutional. Not to mention unethical.
So of course, like any court case, the events happened in phases. Myriad lost the 1st round. In 2010, Myriad’s patents on BRCA1 and BRCA2 have been invalidated. This is one down, but Myriad made sure their lawyers protected the shit out of those patents. So therefore, the company had other patents associated with the genes. For example, they had a BRACANALYSIS test which assesses the risk of breast and ovarian cancer. Of course, as a result, Myriad files an appeal. Myriad argues that the genetic material that they have is not found in nature, but removed from the human body and isolated. Of course, the last statement opens a door for patentability.
Sure enough, they win round 2. The Judge after this case mentioned that “patents encourage innovation.” He also spoke about the ability to encourage reaching around. I ultimately agree with this because because Myriad hid their gene behind a patent, other people sought to find better alternatives to find a solution. This encourages engineering with a healthy dose of competition.
You know, I have to say, there are many pros for biotech to patent their gene discoveries. In this sense, the researchers get rewarded, and the company grows in fame. Not only that, they gain money that can be used to fund further research. Of course, maybe this research is boldly going where no one has gone before. Or at least encouraging it. And also think about it. There is essentially no wasted effort because once it has been discovered, it is open for use (with money) to further novel research.

Of course, there are cons. Because patents are expensive to use, a biotech company, who is driven by discovery and money might not seek to pursue that diagnostic device/assay research because it just will not be profitable for them. Also, what if a company patents something, keeps it a secret, only to find out that another company has patented a similar pathway. These infringement costs are a headache to deal with. And like I mentioned before, a biotech can totally monopolize a specific field after they form a patent.
Concluding remarks: As a scientist, I am for changing the world with a pen. However, coming to a school that is 50% business made me realize that money is always involved, and it drives the research. Although we would like to avoid it as much as possible, there is no way around politics. Therefore, if we fail to protect what we have, we get stabbed, chewed and mauled. Therefore, credit must be given where credit is due. However, there are so many ethical questions involved with that.
But Salk discovered the Polio vaccine and made it available for use by everyone…
As long as we have scientifically-illeterate people trying to make scientific decisions and shift the flow of funds, science will be nothing but a business. And that is a bad thing.
Or is it?

About the Author: Kevin Kim

I have devoted my life to science and rational thinking. As a student in life's classroom, I am striving to learn something new every day. Graduate of UC Riverside, Class of 2012. Graduate Student at Keck Graduate Institute, part of the Claremont Colleges. Class of 2014 with a Masters in Bioscience. The track is pharmaceutical design and development with the ultimate goal of becoming a pharmacist who can also contribute scientifically through research. I hope that through my postings, people will no longer be crippled by stress and anxiety. Fight on! Fight Strong!

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