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Gene Patents: Friend or Foe?
Courtney Garroutte
Academic affiliation: Oklahoma State University
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Wil S. Hylton's essay "Who Owns This Body?" addresses the current state of our patent laws from a unique perspective. Hylton makes us aware of the fact that people are dying and lives are at stake because pharmaceutical companies have become so ravenous for gene patents. The pharmaceutical industry is absolutely out of control because Congress has not voted whether or not patents may be acquired for non-invented items like genes. Scientists are forced to perform techniques that discover genes, in turn; enabling the companies, they work for to patent their discoveries. Once a pharmaceutical company has obtained a patent, they have sole rights to do whatever they want with the patented item. They could be holding the cure for breast cancer, but if they wanted, it could sit in a file, unresearched, for twenty years. If Congress would vote to regulate the idea of patenting non-invented items like genes, several companies could conduct research and cures would be found faster. By not voting on gene patenting, Congress has allowed pharmaceutical companies to hoard gene patents and monopolize treatments, therefore putting lives in jeopardy and overlooking their duties to make drugs that allow people to live healthier and more enjoyable lives.

Patent laws were designed to protect an inventor's original idea so that other people could not claim the invention as their own. An invention, by definition, is an original device, contraption, or process developed after study and experiment. Some of the most remarkable inventions that received patents, with the original intention in mind, include things like the cotton gin, light bulbs, and steam engines. Patenting these ideas was necessary because they were original and new, however, the patenting of genes has strayed from these original intentions. Patents on non-invented items should be regulated to control the patenting of non-invented items so that patents do not become too broad to include cells, organs, and genes that every person has in their body.

Hylton brings this to our attention by telling John Moore's story. John Moore realized that cells were taken from his spleen, patented by his doctor, and he no longer had the right to his own cancerous cells. "They might have come from his body, and they might have contained his DNA, but that didn't mean they were his" (Hylton, 109). A decision was reached in John Moore's case, the judges stated, "Moore's allegations that he owns the cell line and the products derived from it are inconsistent with the patent…" (Hyton, 109). John is not alone, in fact; there are several thousand genes, which we have no sort of entitlement to because they are patented.

Inadequate patent legislation has caused health care to decline in the United States in numerous areas. Several organizations and companies hold patents for genes and are not using patents for research. These companies practice techniques that allow them to hold, often times, hundreds of gene patents. As of 1999, SmithKline Beecham held 197 gene patents and was only actively researching 23 of those (Biotechnology). Incyte Pharmaceuticals have fewer patents than the U.S. Government, however they still hold over 356 patents for genes or gene sequences. Incyte was also researching only a small percentage of the genes to which they held patents. This practice of hoarding gene patents is very common with many major universities and pharmaceutical companies. Once they discover a gene sequence, even if it is not the one they were aiming to find, they patent it in hope that it contains information vital to future research. The healthcare system suffers greatly when genes are patented and stockpiled. Gene patents make it very difficult for the medical community to diagnose patients with diseases like breast cancer because permission has to be granted by the company holding the patent. Genetic testing and therapy is so costly that many individuals have no choice but to live with the genetic condition or disease. People should not have to live unhealthy lives and suffer with curable diseases because gene therapy is so expensive. Our healthcare system is suffering a tremendous blow because patents restrict doctors from treating their patients with the best possible care.

Patents have not only caused healthcare to decline by slowing research but they have also created high cost medications and treatments. Patents have allowed monopolies to exist, making medications and treatments more expensive because no competitions exist. Aside from lack of competition, patents create high cost medications because generic medications can only be produced after the patent expires. Some medications are patented for seven to twenty years so generics are not possible until the patent expires twenty years later. Many consumers, especially the elderly, cannot afford the necessary medications and treatments to maintain a healthy life because generics are not available. Great majorities of our senior citizens have Medicare or Medicaid that covers the costs of only a few prescriptions a month. Elderly people that require additional prescriptions have to pay full price for any medications beyond their Medicare coverage. Pharmaceutical companies experiment with medications for many years until they present their findings to the FDA. This experimentation is costly and imperative for FDA approval and the resulting patents.

As well as enabling a patent holder to charge a higher price for a patented product, gene patents may increase healthcare costs if healthcare providers are obliged to pay a licensing fee or royalties to provide healthcare services-such as where a state clinical genetics service is obliged to pay license fees in order to provide medical genetic testing…(Australia). What this means to the average citizen and the medical community in general, is higher cost medications and decreased health in general. If these patents were not so costly to obtain, medications and treatments would be more affordable and available to those in need. If patent laws were resolved and Congress considered all of these issues, it is likely that a beneficial ripple effect would occur throughout the medical community. Reduced medication and treatment prices would have a positive effect on insurance costs and coverage. More money would be available to our Medicare system and consequently our elderly would receive coverage on many, if not all of their medications or treatments. Consequently, health care in the United States would benefit tremendously.

By allowing genes to be patented, we are actually doing just the opposite of promoting science. Instead of allowing science to progress, gene patents slow research and prevent competition in the pharmaceutical market. Patents on genes allow one company to carry out research on a specific disease or cancer if they choose to do so. Many pharmaceutical companies are trying to patent as many genes as possible in hopes that one or two will be the crucial link in finding a cure. There are thousands of genes that have been patented that are not being researched; these have just been hastily patented for future as soon as they were discovered. This practice is detrimental to medicine because no other research firm has access to the unused patented genes.

It is becoming more evident in the last few years that most people do not concern themselves with an issue until they are faced with a crisis. When a child is diagnosed with a terminal disease that requires a cure that has not been found, only then do they realize that there is a problem and it is too late to do anything about it. Hylton's essay encompassed several issues that most people do not think even exist. Most Americans think that their congressmen will protect them from falling victim to these sorts of issues, but the pharmaceutical industry has a lot at stake. Lobbyists are paid well to see that laws are passed that increases profit for their clients. Our congressmen often do not know that laws could have potentially devastating effects on our future health and well being if passed. We need to get involved and let our leaders know what issues are important to us. Congress is the only governing body that can change our current state of affairs. Congress should get involved and at least vote on the issue of gene patenting before more unrealistic patents slip through the cracks. Until a vote has taken place, it is the US Patent and Trademark Office's decision on what the constitution says and what patents can be given. New patent laws could be instated and have standards that allow more than one person or organization to have rights to a patented gene. In other words, patents could be shared. This would allow competition while maintaining the patent ownership that pharmaceutical companies use to profit.

Another possibility is a patent law that would completely reject all patents that were not original inventions. Genes, cells, and organs could not be patented because they were not invented, however, inventions like the hybrid mouse would be qualified for patenting. A line must be drawn somewhere and Congress has the power to do so. If patents were not allowed several research firms could be carrying out research simultaneously and a competition to find cures quickly would exists. By fining cures faster, the overall health of society would benefit and science would progress without restraint. If Congress does not vote or enact legislation to regulate patents, the practice of hoarding patents for future research will continue and monopolies and on medications will exist; creating more costly medications without the possibility for generic brands. All of these factors will contribute to the decline of health and well-being of society.

Works Cited

Australia Law Reform Commison. "Gene Patents and the Healthcare System" 2003. www.austlii.edu.au Biotechnology Industry Organization. "How Many Patents Has the PTO Issued Covering Gene Sequences?" 1999. www.bio.org

Hylton, Wil S. "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.

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