Ruth Marcus brings up a subject in which I have some interest:
As the sequencing of the human genome has expanded the ability to test for such genetic susceptibilities, is the discovery of the gene itself a patentable invention?
The practical consequences are enormous. Would allowing companies that identify such genes to hold patents on them provide an incentive for useful discoveries? Or would it have the perverse effect of impeding research by allowing one patent-holder to lock up work on the gene, and, simultaneously, hurting consumers by driving up costs and availability?
As it happens, the Supreme Court is poised to decide this issue in a case involving a Utah company, Myriad Genetics, and its patents on the BRCA1 and BRCA2 mutations. As is true of many of the cases that make their way to the high court, this is not the easiest of legal questions — except that this one also calls for an advanced degree in biology.
I do not believe that animals, plants, or genes that occur in nature should be patentable. That’s completely consistent with the history of patent law. You cannot patent electricity, gravity, or the Third Law of Motion although you can patent devices that make use of these naturally occurring physical phenomena. Certainly there are gray areas, for example, when a completely new gene is created. But in my view granting patents on naturally occurring genes is theft, plain and simple.
Pointing to the good that can be done by granting such patents is specious. I could do an enormous amount of good with the money I got from robbing a bank.
“But in my view granting patents on naturally occurring genes is theft, plain and simple.”
That reminds me of Richard Titmuss’s argument in The Gift Relaltionship that commercial blood banks are immoral because they’re trafficking in human tissue.
I could not help but think that Angelie Jolie article in my paper read like an advertisement for Myriad. I’m sure that was not Jolie’s intent, but gosh this should bother people if they knew that only one company can perform this test.
It’s not just commercial blood banks. I think that surgeons who install donated organs, charging enormous fees for doing so, are on shaky moral grounds. Every argument in favor of the morality of the action also supports the sale of livers, kidneys, etc.
I don’t have a problem with doctors (or hospitals) charging for transplant operations — for donors or recipients. Those organs aren’t going to transplant themselves.
Seems pretty simple to me, allowing a company to patent the product of discovery would be like patenting a new species found in say, the Amazon rain forest. They merely stumble across it, allowing them to somehow claim it is their exclusive intellectual property is ridiculous.
Another way of thinking about it. Suppose I find some guys writings in the parking lot for some nifty device. I check, nope no patents. Now, since I “discovered” the writings, I can patent it as my own.
Same idea….same stupid idea.
Just as food for thought, Brazil’s official point of view is that if you discover a new species in the Brazilian Amazon rainforest and produce a product from it you owe Brazil a royalty.
I can see allowing a patent where you:
1. Find “something”,
2. Develop a product,
3. Patent the product.
You aren’t getting a patent for the something, just the product. That is quite in line with the purpose of patents.
I can even see Brazil’s view point as well. Hey, you found it on our patch, we want a cut too.
@Sam
You’re wrong. What commercial blood banks do is no different than what FedEx and UPS do: they collect, store/transport and deliver a product for a fee. They do not claim ownership of the product, or demand that anybody else dealing in those products pay them a royalty. If a company/individual charges for a product or service they make or provide which is derived from a gene, that is acceptable. They cannot- and should not- be allowed to control access to the gene itself.
There is a moral imperative which should keep in check unbridled capitalism, for the common good. This is why, despite Michelle Caruso-Cabrera(of CNBC) suggesting this as a way for people to counter low wages, there are US laws against the sale/purchase of human organs, which would open the door to a great deal of exploitation, as happens in India and other third-world(“developing”) countries which have poor enforcement of law.