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Who Owns Your Genes?

Not the pharmaceutical companies, according to a federal judge who yesterday struck down patents on two genes linked to breast cancer. Biotech businesses and their scientists say the decision will stifle research, destroy incentives for product development, and grow government by leaving federally supported universities as the only institutions willing to undertake further genetic studies. None of this rings true. No doubt holding legal monopoly over a part of a human being is more lucrative for any firm than having to compete with other companies in developing biotechnology, but it is not necessarily best for patients. Other industries do just fine in terms of innovation, and much better in terms of cost control, without being able to patent their consumers.

I think this paragraph from the New York Times‘ story [1] gets at the nub of the matter:

[The company] sells a test costing more than $3,000 that looks for mutations in the two genes to determine if a woman is at a high risk of getting breast cancer and ovarian cancer. Plaintiffs in the case had said Myriad’s monopoly on the test, conferred by the gene patents, kept prices high and prevented women from getting a confirmatory test from another laboratory.

Considering the amounts of money at stake in the principle, we’ll be hearing much more about this in months to come.

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#1 Comment By Barney Rebble On March 30, 2010 @ 9:28 am

Excellent article, and excellent observations.

This whole subject is near and dear to people who study Intellectual Property rights, over the last 70 years.

That is, If I can describe a step-by-step procedure to define some function necessary to a person’s life, at what level do I own “my” work, and at what level did I encroach upon that other person’s right to perform that necessary function, free from interference by me (and my attorneys).

And in general, the precedent set by the software industry, is that I can’t patent an accounting procedure, but I can patent the tool that was substantially created by me, to be used to DO accounting, so long as it seems provable that somebody else didn’t invent it first.

Hopefully common sense will take over, and if somebody invents a genetic combination that was unlikely to have occured in nature, then they can patent their own work.

And then, what liability should they face, if this new creation of theirs gets out of hand, and begins to de-populate the earth? Stuff of science fiction over the last hundred years (Frankenstein, anybody?).

An excellent example is the study of algae. Can we invent something that will grow in the ocean, and eat CO2, and produce petrolium when harvested? If and when they do this, they SHOULD make a lot of money, without somehow stifling further research.

Thanks for your excellent article.

#2 Comment By Hunter On March 30, 2010 @ 11:33 am

I’m pretty sure that the relevant distinction here is between ‘pro-markets’ and ‘pro-business’. Bravo to TAC for being more the former and less the latter,

#3 Comment By Paul On April 1, 2010 @ 3:41 am

There’s a different take on this at the Skeptic’s Health Journal, sort of provides some of the background to the debate, if interested you can read on it here, [2]

Would just add that while I understand Barney Rebble’s position I would also ask him to consider that often these changes are in self propagating organisms. To use a very silly example, which nonetheless may be technically feasible if I create from cutting and pasting, influebola and …. oops it is released to the wild, does my patent protection remain??

#4 Pingback By Go Patent Yourself! « Around The Sphere On April 3, 2010 @ 8:56 am

[…] Daniel McCarthy at The American Conservative: Biotech businesses and their scientists say the decision will stifle research, destroy incentives for product development, and grow government by leaving federally supported universities as the only institutions willing to undertake further genetic studies. None of this rings true. No doubt holding legal monopoly over a part of a human being is more lucrative for any firm than having to compete with other companies in developing biotechnology, but it is not necessarily best for patients. Other industries do just fine in terms of innovation, and much better in terms of cost control, without being able to patent their consumers. […]