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The Gene Patent Question:
Who Really Owns Their Body?
Kristen Sievert
Academic affiliation: Oklahoma State University
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Today's patent system has changed from what it was 75 years ago. Changes began when the first living organism was patented. In "Who Owns This Body," Wil S. Hylton goes into depth on events that have brought about this enormous change. The new patent craze began with the patent of one strain of bacteria. From bacteria, patents were placed on genes, cells, blood, animals, and many other living organisms. However, thanks to patent laws people must pay for access to these body parts. Patent laws were made to protect inventions. Within the past three decades, they have evolved and gotten out of hand. Patent laws would be better if they had not come to include living organisms, because now several companies hold patents on numerous body parts of many living organisms.

Ever since the first patent was given to the first living organism, the patent office has had problems defining which living organisms should and should not be given patents: "The Court, however, failed to define the boundaries of this new area of patent doctrine" explains Ryan Iwasaka (1506). After the Supreme Court made the decision to allow General Electric a patent on its new bacteria, they failed to make restrictions to go with the ruling (Hylton 116). Without rules to follow, the door was left wide open for anything and anyone to be patented. Therefore, the patent office was left to make decisions as to which organisms were justified to receive patents. Confusion set in when some patents were refused for unclear reasons, and some patents were granted to organisms that would have never legally received one before the first living organism was patented (Iwasaka 1508). The excessive use of patents today may have resulted from the lack of restrictions produced in the adolescence of living organism patenting. The patent office is setting precedents for many other organisms of all kinds to be patented. If the US Patent Office had not allowed for the first living organism to be patented, they may not have the confusion and problems there are with patents today.

Before the first living organism was patented, the patent office seemed to have standards. Peter Singer, an animal liberator, claims: "Patents on plants and animals would allow humans to hold exclusive right to other living organisms an arrangement that seemed immoral to many" (qtd in Iwasaka 1511). If someone owns the rights to a Jack Russell Terrier, he or she would be allowed to lend out the breed only if he or she wanted. One person should not dictate who can breed or own a certain type of dog. Similarly, companies should not be able to lend out the rights to a specific gene. The patent issue seems to be getting into a Constitutional issue. Since the United States abolished the right to own a person, why should someone be able to own individual parts of a person? That would seem to fall under the same guidelines. However, human cells and genes have been patented. Without review by Congress, people will be allowed to patent until there are no more living organisms left to patent.

Patent laws force people to pay to gain access to their own genes, blood, cells, and almost any other part of their body: "There are about a thousand other human genes that have been patented" says Hylton (109). For researchers to do work on one of those genes, they have to pay a fee to the company that owns the patent to that gene (109). For doctors to run tests for breast cancer, they have to pay Myriad Genetics, because they have the patent to the breast cancer gene (109). If anyone needs a bone marrow transplant, they have to pay to access those cells, because a company owns the rights to them. Therefore, they own the right to tell anybody that they cannot have the transplant. Also, they have the patent that gives them permission to charge people for parts of their own body. Selling the rights to body parts that belong to other people has gotten out of control.

One example of flaws in patent regulations is told by Hylton. A man by the name of John Moore was plagued with a rare form of cancer, which resulted in the removal of his spleen. His doctor, Dr Golde, kept cells from his cancerous spleen alive in a laboratory after Moore's surgery and did not tell him. In addition, Dr. Golde kept Moore coming back for numerous check ups. After seven years, Moore received a contract to surrender all rights to the cells from his spleen. After doing some research, Moore realized the greedy doctor had patented the cells and sold them for stock worth $1.5 million and failed to inform Moore. Consequently, Moore sued Dr. Golde and lost, because Dr. Golde patented the spleen cells, which gave him legal ownership of the cells even without Moore's permission. Therefore, Moore received no compensation for the sale of his spleen cells. Moore no longer owned the cells to his own spleen, because Dr. Golde patented the cells before Moore even knew they existed. If the patent system was only used to patent only inventions, Moore would not have gone through the lengthy process he was forced to endure.

Before the first living organism was patented, Moore may not have been brought back for seven years, and would not have had to go through the litigation. Furthermore, Moore may have been told about the cells being kept alive for research as soon as his surgery was completed. He may have even volunteered to be rechecked for the sake of the research. However, he never even got the chance to know about the cells. Instead, he was deceived and put through an unnecessary ordeal, which thirty years earlier may have been avoided. Because patent regulations allow almost anything to be patented, people are often forced to endure lengthy trials and emotional issues like that of John Moore.

In the beginning, the patent system was made to protect American inventions. Over twenty-five years ago, people could only patent inventions such as the snickers bar or the vacuum (Hylton 110). Hylton claims: "Back then, the U.S. patent code looked a lot more like the code Thomas Jefferson wrote, the code that was designed to protect inventions" (110). If scientists were able to have free access to genes, they may have the chance to find cures to a multitude of diseases. However, budgets are limited for many research stations. They cannot afford to pay for access to genes or cells. Also, a cancer patient would not have to pay to have tests run to receive details about his or her cancer. Many people go without treatment, because they cannot afford to pay the companies who own these genes. Why should these companies have the right to let someone die, because someone cannot afford the cost of testing his or her own cancer? If the patent system had never began patenting living organisms, research scientists may not have as many problems accessing research subjects, and many more people may have received treatment. Consequently, the patent office has failed to create different regulations for the many different topics of living organism patents. "The simple process that worked for bacteria and tubers is ill-suited for tackling the complexities of transgenic mice or cross-mutated corn," explains Iwasaka (1532). When the first living organism patent was granted, regulations should have been made to keep current on all topics of debated patents. Then, some knowledge of the subject could be taken into consideration when granting or refusing patents. Keeping regulations current may have reduced the amount of the broadly stated patents, such as the oncomouse, received and granted by the patent office. Now, almost any animal with an over expressed oncogene has to pay restitution to Dupont, because the patent was stated in such a broad manner (Hylton 118). If regulations had been discussed from the beginning, the patent may have been given closer review. However, the patent office was still in confusion about the patent given to General Electric's new strain of bacteria (118). Regulations may have even been made to stop living organism patents completely. If one organism slips through and receives a patent that should not have, try to change laws or regulations to make sure the mistake is not made again. Maybe the one mistake would not have led to many mistakes. However, the patent office let the mistakes go unattested and allowed for many more to be made.

Since the first living organism was patented, the system has been on a downhill slide. The new patent system all began with the patent of one cell of bacteria. From there, DuPont received a broad patent on a mouse with an over expressed oncogene (Hylton 118). Since then, patenting living organisms has escalated. Jeremy Rifkin says: "You cannot own the whole human being, but now you can own all of the parts" (qtd in Hylton 119). Now, a multitude of companies own almost every part of everyone's body. No one should have to pay to access his or her own body. If the laws remained how they were when only inventions were patented, much more in the way of research and healing could be done. Also, patients may not be deceived because of the greed companies and doctors share. There was nothing wrong with just patenting inventions. Now, people are forced to pay for access to genes and cells in their own bodies. Hardly any time will pass before there are no more living organisms to patent. Then, maybe the confusion about regulations will be over, and Americans will go back to patenting inventions. After all, was that not the reason the patenting system was created? If the U.S. had not allowed companies to patent living beings, maybe more people would be alive today.

Works Cited

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

Iwasaka, Ryan M. T. "From Chakrabarty to Chimeras: The Growing Need for Evolutionary Biology in Patent Law." The Yale Law Journal 109 April 2000: 1505- 1534.

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