Tuesday, November 3, 2009

On Patenting Life

News item: Wired Magazine -- November 2, 2009 -- Judge OKs challenge to human-gene patents.

A federal judge ruled Monday that a lawsuit can move forward against the Patent and Trademark Office and the research company that was awarded exclusive rights to human genes known to detect early signs of breast and ovarian cancer.

US Judge Robert W. Sweet of New York, in ruling that the case may proceed to trial, noted that the litigation it may open the door to challenges of a host of other patent genes.  About 1/5 of the human genome is covered under patent applications and claims.
This is an excellent lawsuit!  The plaintiffs -- the ACLU and the Public Patent Foundation at the Benjamin Cardozo School of Law -- are alleging that the patent violates free speech by restricting research.  They also claim that the defendant company, Myriad Genetics of Salt Lake City, has tried to patent something that occurs in nature.  The company did not invent, create or engineer the genes; it merely found the genes in nature and described how they function in nature. The company should be able to patent the method by which it found the genes, but not the genes themselves.

There is a practical problem at the root of this lawsuit; women who want to know whether or not they have inherited the mutation of a gene that predisposes them to breast cancer have to pay $3000 to Myriad for a test because Myriad has a monopoly on the genes used for the test. No other company can make a competing test using the same genes.  No research can be done using these genes without traveling on Myriad's toll road. And it's more than royalty payments at issue here. Myriad can simply refuse to license the use of the gene for another company's research. Why would it want another company to use its patented genes to develop another cheaper and perhaps even better test that would compete with its own?

But there is a deeper philosophical question here, one that is at the foundation of modern science and economics. Is the human body is economic commodity? We allow others to own a part of ourselves in that they can purchase our labor and therefore a part of our time on earth. But, can some individual or corporation claim ownership of part of our very body?   I thought we had decided that question in this country in the mid-19th Century with the Civil War.  But though we may no longer auction off whole human beings in the town square, we apparently can turn individual body parts such as genes into patentable commodities in the lab.

We find the idea of selling human organs or babies offensive, and rightly so. How come the idea of a market in genes is not equally offensive? Is it perhaps because we can not see genes with the naked eye the way we can see a heart, a kidney, or a whole baby? Are genes, to most of us, an abstraction in the way that an organ or a baby is not?  Whatever the reason, we should really reconsider this whole folly of patenting life, not only human genes but other life forms such as seeds.  Life is not a commodity!

Read the lawsuit! (.pdf 31 pages)