On Patent Law, Life, and Nature

Did you know that genes are patentable? Because I hadn’t until I read Michael Specter’s New Yorker piece summarizing patent law as it applies to life:

Traditionally, patents have applied solely to inventions, granted as a reward for ingenuity and to encourage innovation. Naturally occurring substances, like DNA, were exempt from such laws. Then, in 1980, Ananda Mohan Chakrabarty, a scientist working for General Electric, filed an application for a patent on a bacterium that he had modified genetically so that it could consume oil. The Patent and Trademark Office rejected Chakrabarty’s application on the ground that the bacterium was a product of nature. Chakrabarty sued, arguing that, by altering the organism, it was his ingenuity that made the bacterium valuable. The case ended up before the Supreme Court, which, by a vote of five to four, ruled in favor of the engineer. “The fact that micro-organisms are alive is without legal significance for the purpose of patent law,” the Court wrote. Chakrabarty’s creation became the first life-form to receive a patent.

Since then, genes considered to have been “isolated from their natural state and purified” have been eligible for patent protection. The first such patents were issued for DNA that had been altered to produce specific proteins, such as the insulin used daily by millions of diabetics. Those patents were rarely controversial. Over the years, however, patents have also been granted to people who have identified genes with mutations that are likely to increase the risk of a disease. Any scientist who wants to conduct research on such a gene—even on a small sequence of its DNA—has to pay license fees. The practical effect has been chilling. According to public-health officials and academic leaders, it has stymied research into many types of disease.

This seems particularly outrageous:

A patent on a product of Nature would authorize the patent holder to exclude everyone from observing, characterizing or analyzing, by any means whatsoever, the product of Nature.

In the end, this is big business (but with a cost):

Moreover, when a company patents a gene, it also patents the rights to what that gene (or any fragment of its DNA) might tell us about our health, including our chances of living or dying. A woman who inherits a harmful version of either of the genes that Myriad has under patent, for example, is five times more likely to develop breast cancer than a woman who does not. She is also at significantly greater risk of developing ovarian cancer. Women who want to know whether they possess those harmful mutations have just one way of finding out: by taking a three-thousand-dollar blood test offered by Myriad Genetics.


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