Good post by C4SIF board member David Koepsell:
NATURALLY OCCURRING GENES AND THE COMMONS BY NECESSITY
By David Koepsell
One frequent response to various arguments against gene patents is the claim that without such patents the biotech industry will falter. There is very little evidence for this, and recently the trend has been that corporations are seeking fewer patents on unmodified genes. This trend is no doubt motivated by recent shifts in the legal landscape creating greater uncertainty about the future of gene patenting in general. The decision by Judge Sweet in the AMP v. Myriad case, the report of the SACGHS, and the Department of Justice’s recent amicus brief opposing patents on unmodified, but merely “isolated” genes have necessitated greater caution in patent filings. If these trends continue, only modified sequences are likely to remain patent-eligible. The DOJ’s brief sets the standard pretty low for modification, given that they conclude that cDNA is sufficiently inventive to be patent-eligible; but all of this nit-picking and dithering around the edges of patent-eligibility for genes, and bargaining among parties who clearly believe that gene patents have some useful role in promoting innovation, seems odd to me. All of these arguments hinge on questions regarding the efficacy, efficiency, and role of gene patenting in encouraging innovation and economic growth. Utilitarian arguments are suspect to some of us with training in ethics, and of a particular ethical bent.
Utilitarian arguments can justify all sorts of nasty things, as long as the overall good outweighs the harms caused. Utility can be a reason for doing something, but it cannot, in my estimation, ever suffice if rights are otherwise violated. Those who believe in rights (and the duties they imply) must reject the sole use of utility as an argument in favor of gene patents if they violate some particular right.
In my book Who Owns You? The Corporate Gold Rush to Patent Your Genes, I considered the various utilitarian arguments proposed by gene patent proponents, but argued ultimately that these pragmatic justifications were outweighed by the fact that gene patents violate certain inviolable rights. I didn’t arrive at those rights in the usual way. I concluded that even with gene patents, no one really “owns” you, nor can they claim to have any control over any one of us by virtue of their patents. Even while patents on unmodified genes prevent you from gaining information about your genome without paying monopolistic rents to patent holders, it is conceivable that this will be overcome by various technical possibilities, such as do-it-yourself whole genome sequencing. This is a remote and distant possibility (anticipated and prepared for by the heroic Steven Salzberg, of the University of Maryland), but it illustrates that the sort of control over individuals posed by patent ownership falls short of violating our individual autonomy over our bodies.
Patents give to the patent-holder a right to exclude others from doing something. In the case of gene patents, they give their owners rights to prevent others from replicating the patented gene. In most of the valuable instances of these patents, that right enables a company (like Myriad) to prevent others from testing for the presence of a certain mutation of BRCA1 and 2 that causes an increased likelihood of breast and ovarian cancers. Granting such a right to exclude is not unique to intellectual property law. It also is a hallmark of real property law. The term “real property” at one time applied to all tangible goods, but now it is generally understood to mean simply “land.”