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Patenting Our Birthright

Copyright © 1999, 2000, 2013 by David E. Ross

The Los Angeles Times reports plans by Celera Genomics to patent those parts of the human genome that company has deciphered. I have serious concerns about these plans, unrelated to the issues of medical ethics and how such patents might inhibit the development of disease treatments.

If an entomologist discovers a new butterfly in the jungles of Brazil, he cannot patent the butterfly, which existed in nature for ages prior to its discovery. If a physicist discovers a new element, the method of discovery might be patented; but the basic atomic building blocks of matter exist without regard for human discovery and cannot be seriously considered for a patent. If a chemist discovers a different way molecules bind together, a new plastic resulting from that discovery might be patented; but the binding principle itself is a consequence of nature that should not be patented.

Similarly, your chromosomes and mine are created from sequences of genes that existed well before Celera Genomics incorporated. Patents are prohibited for prior inventions, and your parents and mine invented our genetic sequences before Celera Genomics mapped them.

The real issue is that patents should be restricted to inventions and not be allowed for artifacts of nature. Celera Genomics might patent the technology they used to map the human genome; they might also copyright their research reports. But no one should be allowed to patent something they only discovered but did not create. Otherwise, some future patent might prevent parents from conceiving a child with certain naturally inherited characteristics.

24 October 1999

Canavan disease is a genetic disorder that first appears when an infant is about six months old. It involves progressive neurological degeneration leading to an early death.

Using blood and tissue samples from children dying or already dead of Canavan disease, Dr. Reuben Matalon and Miami Children's Hospital developed and patented a test to detect the fatal gene. Now, even relatives of those same children must pay a royalty to be tested. The Canavan Foundation was even forced by the demand for royalties to discontinue a program of free genetic testing for this tragic disease.

The families whose dying children supplied the genes — along with other plaintiffs — are now suing Dr. Matalon and the hospital to stop them from profiting from those genes. Since the genes existed prior to Dr. Matalon's work, the concept of "prior art" should invalidate any patent on the gene itself. And now that the gene is known, other tests could easily be developed, avoiding use of the patented test.

For another commentary on this subject, see Who Owns Your DNA? Apparently, you don't; some for-profit biological research company does. Soon, they will be demanding royalty payments if you reproduce your genes by having children.

19 November 2000

On 13 June 2013, the U.S. Supreme Court unanimously ruled in the case of Association for Molecular Pathology versus Myriad Genetics, Inc. that naturally occurring genes cannot be patented. Specifically, the Supreme Court ruled that "Laws of nature, natural phenomena, and abstract ideas are not patentable."

This ruling involved the BRCA1 and BRCA2 genes, which predispose women who have those genes to suffer breast and ovarian cancer. It is clear, however, that it applies to all non-artificial genes. Thus, while a test for a gene can still be patented, the gene itself cannot. This means that alternative tests for the same gene can be developed without concern for patents on the gene itself, including tests for Canavan disease.

Yes, each of us does indeed own our DNA, inherited or mutated. Contrary to my 2000 prediction, no biological research company will be demanding royalty payments if you reproduce your genes by having children.

13 June 2013

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