The Supremes are taking up a case concerning whether a biotech firm should be allowed to patent a specific gene they’ve identified. Story here. I’m going to have to do some more reading up on the issues, but my initial thinking is that naturally occurring genes ought not be patentable. Any Dopers feel strongly pro or con?
I agree- I think that, to patent a gene, the patentor must have invented the gene in question.
That’s an overly simplistic and largely incorrect view of what gene patents are. It doesn’t mean that the company owns the gene and can charge you for using it in your body. What it means is that if a company sinks a bunch of money, time and effort into figuring out what a gene does and how it can be useful, then they get the right to the money that comes from that research - not all that different from other patents.
Now, obviously, there are huge swathes of grey areas involved, and there are lots of legitimate debates to be had about individual cases. As a general rule, though, it’s helpful to have a correct understanding of what’s being debated.
My view is that as a general rule, some level of protection makes sense. The devil is in the details here more than usual, though. I can offer one quick example of an issue I ran into in the past that illustrates the kind of stupidity that can arise:
Myriad Genetics (IIRC) discovered that a specific mutation in a gene called ApoE is associated with Alzheimer’s. They patented this information and had the exclusive right to sell genetic testing looking for this mutation. So far, so normal. However, not long after, someone else discovered that the exact same mutation in the exact same gene is also associated with high cholesterol, and this information was released to the public domain. I worked for a company that did genetic testing for various diseases at the time. We (legally) developed and began to sell a test for this mutation - again, the exact same mutation that Myraid “owned”. We were ONLY allowed to do this testing for doctors who wanted to know their patients’ risk for high cholesterol. If they were interested in Alzheimer’s risk, we could not legally do the test. Theoretically, if they were interested in both, they’d have to pay for two separate tests which would both give the exact same information.
It’s a mess right now, and there are no easy or obvious solutions.
I dunno. I’m not sure patents are intended to provide return on investment.
I’m not downplaying the role of the firm’s expenses and efforts expended in isolating these genes, and I recognize the role of profit in so many aspects of helth research. But if I mount an expensive trek into the deepest Amazon, do I merit a patent on any new life forms I discover? Should the individuals who identified naturally occurring elements have been alowed to patent them?
IMO this would be entirely different if the firm modified the gene in some way, or developed as specific therapy targetting this gene. And they might be allowed to patent the methods they used to identify/isolate it. But the gene itself?
Yeah, where exactly to draw the line is one of the problematic grey areas. I certainly don’t support those companies that were sequencing everything they could get their hands on on the off chance that some of the sequences would prove to be valuable, for instance.
That’s the common justification for the patent system. Google “justification of patents” for lots of interesting reads. Here’s the top response I get, not necessarily the best:
You’ll see this argument repeatedly if you search.
In general, patents don’t apply to discoveries. In particular, mathematical truths aren’t patentable. Initially, algorithms were held to be mathematical truths and thus weren’t patentable. I believe that has changed. Your case of discoveries is included in this, and it’s a good analogy to genes.
Genes are given special treatment, and don’t count as discoveries. The main reason is that it’s not just a matter of tripping over a gene and “aha, here’s the gene, and it’s obvious what it does and how it works.” Instead, a lot of science goes into determining what a gene does and how it works, and the idea is to reward that effort.
But I agree that it’s a dangerous precedent and has to be used judiciously.
It’s a good thing that software wasn’t patentable in the early days of computers!
I’m an advocate of intellectual property rights, but what I see in industry is that the patent system is being abused, and the result is that it is no longer practical for a small company to compete in industries like telecom, because the giants have too many ankle-biter patents.
I won’t be surprised to see the same happen in genetics.
BTW, there’s another justification for patents, which is the right to the fruits of one’s labor. That would be the Objectivist justification, which to folks like Ayn Rand, would trump any economic arguments. But it seems to me that would apply to discoveries as well – the gray line would get even fuzzier.
But aren’t the drug companies, etc. piggybacking off the publicly funded research that’s already been done? Because that’s (part) of what really pisses me off.
Thanks for the clarification. In my “Amazon” example I intended to imply the distinction between invention and discovery.
Also, in my prior statement as to the intended purpose of patents, I desired to note that patents ought to be justified or not independent of the investment involved. I could patent something I “invented” as a result of minimal investment - the proverbial lightning bolt that I jot down on a cocktail napkin.
Agreed. They should have to demonstrate a novel sequence, produced through labor; not simply an identified naturally occurring sequence.
Even if you invented it, how do you propose to control it? A gene is going to reproduce itself organically–literally organically. It’s not like a technology, which reproduces memetically. Patents applied to genes require more harm done than good achieved.
Right. There’s a difference between the justification for the system, and the uses to which it can be put. There’s no requirement for an investment, and no requirement for a profit. The system tends to encourage the former by allowing the latter.
Another benefit of the patent system is that it requires disclosure, which is seen as a general benefit compared to keeping the new idea a trade secret. Even if you can’t use the idea without a license, you can learn from it, and you may find new applications that aren’t covered by the patent.
Back to the OP’s question, I sure don’t know the answer, and it’s a really good question.
I was under the impression that it had already been answered, though perhaps not for human genes. I don’t think the source of the gene should matter.
This is definitely an issue. The case being argued before SCOTUS today involves the BRCA1& 2 genes whose mutations are linked to heredity breast and ovarian cancer. These genes were initially discovered by scientists at the University of Utah in 1994 (the paper originally published describing the relationship between BRAC 1 and breast cancer was supported by multiple grants from the NIH and from the Canadian government). Myriad patented the BRAC 1&2 gene sequence which allows them to hold a monopoly on the test that detects the mutation - which costs about ~$3400.
Women with a family history of breast or ovarian cancer and women who are diagnosed with breast cancer at a young age have a high probability of being carriers of the BRCA1or 2 mutation. Knowing if one is a carrier leads to more vigilant screening and monitoring, however, most women are tested for the mutation once they have been already diagnosed with breast or ovarian cancer in order to determine the best course of treatment.
The actress Christina Applegate at the age of 36 was diagnosed with breast cancer and upon reviewing her family history opted for the genetic test, tested positive and thus underwent a double mastectomy rather than less invasive treatment options like radiation or a lumpectomy. Women who are BRCA 1 or 2 carriers have a high probability of recurrence therefore more radical treatment is recommended. Women facing such invasive treatment options, such as a ovariectomy or bilateral mastectomy, are generally going to want a second opinion and second test to confirm they are carriers of the mutation. However, no other company has been able to develop a test because Myriad holds the patent on the genes.
I thought this NYT article has a good summary on the issues and legal battle:
I’m OK with paenting specific applications discovered by studying the genes (like the test mentioned by a previous poster). The gene itself? No way. Isolating it is similar to discovering a new plant in the Amazon, as someone stated, or isolating a chemical element. If you just isolated sulfur, you can patent its use in matches, for instance, but not the element itself so that all uses that can conceivably being discovered in the future for this element get you royalties.
Same with genes.
I would say know, but I also think the patent system is getting out of hand.
As far as I am concerned, a Patent should only be granted to a new actual, working design of a physical product, or a specific technique; in this case, such as isolating a gene. Patenting the gene itself is improper.
I don’t agree with these types of “gene patents.” I understand and follow the arguments that allow them, but I think they are misguided in the way they allow the company to profit from their discovery.
When Warren and Marshall discovered that stomach ulcers were caused by H. pylori, they didn’t get to patent the act of looking for H. pylori to help diagnose patients with stomach problems. They did manage to develop a quick and easy assay for the bacteria, which they could presumably have patented and sold for profit (I don’t know if they did so or not).
Your doctor doesn’t have to pay a licensing fee to listen to your heart to diagnose cardiac problems, and a separate fee to listen to your lungs, and yet another smaller fee to listen to the pulse in your arm while taking a blood pressure reading. Yet the company that sold him his stethoscope somehow manages to make money!
Companies that sell blood testing kits for diabetics don’t have a patent on the act of measuring blood sugar, yet they still manage to make money too.
If anything, I think this is a great argument for increased public funding for scientific research. Which, if you’re not aware, is piss-poor at the moment. There are a lot of new scientists, myself included, who are headed (or in my case, planning on heading) into the private sector simply because public funding is so uncertain and difficult to get.
I’m not a fan of patents in general. However, assuming patents exist, should genes be patentable? No.
A process to extract or synthesize a gene? Sure. But facts shouldn’t be patentable. The fact that gene X raises the risk of Alzheimer’s disease is a fact that shouldn’t be patentable. If, in studying that gene, you discover a medicine or treatment for Alzheimer’s, I suppose that could be patentable.
Nevermind. Duplicate post.