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Gene Patents and Self-Ownership in the New Millennium:
Laws That Slow Us Down
Eric Fredrick
Academic affiliation: Oklahoma State University
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Patent laws in the United States, according to Wil S. Hylton, are out of control. In "Who Owns This Body?" Hylton discusses how patent laws have stretched far beyond their original boundaries to cover most anything, including living things. He attributes this to the fact that the public pays no attention to it. Whether the public has or has not been paying attention should be immaterial to the subject of stretching patent laws. "The patentability standard for biotech inventions that has guided the PTO (Patent and Trademark Office) since 1980 is that a product of nature that has been transformed by humans can be patented if it is new, useful, and nonobvious" (Dickinson 69). Under this standard all genes that have not been altered could not be patented lawfully. This would include genes that are related to many life-threatening diseases that are found naturally in humans. But there are thousands of patents on thousands of genes and bloodlines found unaltered in the human body. These patents are restricting the use of bloodlines and gene types making them impossible to research by anyone else. Without access to certain material they cannot research it. Allowing naturally occurring genetic material to be patented is holding back the progress of research in the biotechnology field.

Proponents of the current patent laws believe that the current laws increase competition, therefore increasing progress of research. The laws do protect those that get to the patent first, but it completely stops the research of those that are maybe studying the same subject. It is good that the patent protects the inventor and gives them appropriate returns from their inventive efforts (Leibovitz 2253). The patent also makes the information that is patented completely exclusive. This completely eliminates all the research that other scientists have up until the patent is filed. This is where the problem arises. The competing scientists must start completely over or use techniques that have not previously been patented. This is a huge loss of time for the competitor and a huge advantage for the patent owner. The owner of the patent can now improve upon the original design, a benefit of patenting. They are the only ones that can use the original design that is now completely protected in their improvements. Their competitors must invent something completely new, and also better if they want to compete at all. These proponents of the patent laws are not looking at the long term. The current patent laws do increase competition and speed of the research. This is because all competitors are trying to be the first to patent their idea. Afterwards it retards the research of all that do not get the patent first. This process repeated over and over creates a huge retardation in the creative process. While it might increase the productivity of thousands that obtained patents, it slows down hundreds of thousands of competitors that no longer have the use of the patented information. The current patent system is good in theory, it protects intellectual property, but on the other hand it slows down the progress of researchers across the country.

The patent laws before 1980 clearly stated that for something to be patented, it had to be new, useful, and nonobvious. This standard was brought about because of a patent that General Electric applied for in 1980. In that year, GE was granted a patent for a genetically created bacterium Pseudomona. Pseudomona is a bacterium that could eat oil out of salt water and could be used to clean up oil spills. According to the current patent laws it was acceptable to grant a patent for Pseudomona because it did not exist in nature before scientists at GE created it. It also had a useful process that GE clearly demonstrated and it was not obvious. According to the constitution this was a valid claim for a patent. GE also had gone through very extensive research to come up with this very useful bacterium. The Supreme Court then granted GE an exclusive patent effective for twenty years, just like every other patent. At this same time DNA research was increasing rapidly. New and less time consuming ways of finding genes were emerging. As the ease of discovery increased, the amount of patent application also increased at an extremely high rate. Many of these were accepted the same way that the GE bacteria patent was, except most of these patent applications had not fulfilled the standard for all patents. They were not new; they had always been in DNA chains somewhere. They had no useful process; scientists still did not know what most of these genes did. They also were obvious; it was just a matter of time before someone identified it. So now the genes have been patented with little or no work or capital put into the research. This was revenue gained for the company or person that patents these genes, but it also created a huge backlash effect. "A patent on something unique-in this case the genetic code-means no one else can 'invent around' and improve on the product" (King qtd. in Benowitz 8).

The fact that genes needed for research into therapeutics are now locked up with a patent is not nearly as appalling as the fact that many of these genes deal with life threatening diseases such as breast cancer, Alzheimer's disease, epilepsy, and even one for brain cancer (Hylton 109). For example, if a person wants to know whether or not they might have the gene for breast cancer, they not only have to pay the doctor, but they also have to pay $2,500 just to access the gene. Myriad Genetics, a company that researches these genes, has a patent on BRCA1. BRCA1 is the gene for breast cancer, a gene that could possibly be fatal for any person that may have it. Myriad Genetics has a monopoly on all BRCA1 genes. No one else can even look for that gene. Doctors have to send the specimen (along with a $3000 check) to Myriad so that they may test it, which also allows for Myriad and only Myriad to discover new mutations. How are the citizens of the United States not infuriated? They are being violated. They have to ask someone for permission to look at parts of their own body. It is difficult to understand why there is not more of an uproar over this deprivation of people's bodies. It should be even more disheartening that the money made from these genes mostly goes to line the pockets of the owners of the genes. It does not go into life saving research. Many small research companies cannot research what they want due to patents on certain things. Patents could be barring them from coming up with a cure for Parkinson's disease. Patents are keeping scientist from possibly saving lives.

There are solutions to this problem. The patent laws themselves could definitely be changed. The current patent laws have a major loophole that is allowing much of this biological material to be patented. The United States Constitution states that "whoever invents or discovers any new and useful process, machine, manufacture or composition of matter . . . may obtain a patent therefor" (Eisenberg 2085 f.n. 18). By taking the word "discovers" out of the law, this would eliminate patenting of genes or blood "discovered" in humans. This would allow scientist to keep studying humans and possibly find knew cures for certain diseases. It would not completely eliminate patents on genetic material, just material that was not invented. General Electric's patent that was discussed earlier would still be able to be patented. Although the original bacterium was discovered, the scientists altered the bacteria and then it had a useful process. By just eliminating one word it would still allow scientists to research what they want, and it would still protect those that actually invented something useful. This system would propagate research because many scientists will actually be trying to come up with something new instead of basically digging for gold in the human body. Another solution would be to create a nonexclusive patent system. John S. Leibovitz explains in Inventing a Nonexclusive Patent System how this would work. He proposes a "patent system that, instead of granting exclusive property rights to the first inventor of a new technology, protects him against free-riding competitors, but not against competitors who independently develop the same technology" (Leibovitz 2268). This system would also propagate the exploration of new ideas due mainly to competition more so than the current patent system. These two solutions are just a few of the possibilities that could change the patent laws for the better.

The gene-patenting landslide has been gaining speed more and more. Now that there are computer programs that can find tiny bits of DNA chains in short amounts of time, there are patent applications being filed just as fast. This is making it harder and harder for scientists to access genes that they need to create medicines and test patients. The fact that these patents should never get through is even more frustrating to the scientists that are trying to study these genes. Their research in some cases gets completely wasted because they were not the first to patent it. Without patents at all, people would not have any incentive to invest any money into research. Only when patents are granted according to the law is this beneficial. In the biotech industry on the other hand, genes are getting patented in spite of the laws. These patents are just holding back the real breakthroughs in the biotechnology industry.

Works Cited

Benowitz, Steve. "European Groups Oppose Myriad's Latest patent on BRCA1." Journal of the National Cancer Institute 95.1 (2003): 8-9.

Dickinson, Todd Q. "Reconciling Research and the Patent System." Issues in Science and Technology 16.4 (2000): 64-70.

Eisenberg, Rebecca S. "Analyze This: A Law and Economics Agenda for the Patent System." Vanderbilt law Review 53.6 (2000): 2081-2098.

Hylton, Wil. "Who Owns This Body?" Speculations An Anthology for Reading, Writing, and Research. Landrum, Jason, Matthew Wynn Sivils, and Constance Squires, eds. Dubuque: Kendall/Hunt, 2003. 107-124.

Leibovitz, John S. "Inventing a Nonexclusive Patent System." The Yale Law Journal 111.8 (2002): 2251-2287.

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