I always marveled at how you could patent genes, which seemed to me to be "naturally occurring phenomena", which is supposedly not patentable. It is even more preposterous when you consider that plant patents specifically exclude tuber plants because the root that would be patented is also food, and the patent office was too worried about preventing people access to food.
If you zoom out, though, and consider why patents exist in the first place, the idea that a research institution deserves to profit from the fruits of their research money is not that absurd. I think the question is not whether patents should be issued for biotechnology research, but instead what the best method is to protect investment in biotechnology research while not retarding future work.
Also, on a side note, patents may be infringed upon for research purposes. This is not holding back research, it is only slowing commercialized tests (or maybe just increasing their cost). There is nothing to suggest that the licensing terms offered by the patentee are exorbitant... The patentee is merely trying to recoup some of their investment in the commercialized result of their research.
Guaranteeing profit is not why patents exist in the first place. They exist "to promote the Progress of Science and useful Arts."
It is not about profit, but rather about overall progress and benefits for society at large. I think there's a good argument to be made that the current system now falls short of this goal and new rules are required.
> Guaranteeing profit is not why patents exist in the first place. They exist "to promote the Progress of Science and useful Arts."
...and the way that they promote the progress of science and technology is to put a PROFIT MOTIVE in place, so that folks have more effective reasons than pure altruism to engage in research.
Yeah, YOU might dedicate your career to finding important genes, instead of launching a software startup, because you care that much about other people.
...but what VC is going to pay for your lab and staff if he can't make a profit off of it?
Bottom line: intellectual property is a government created kind of property, but it aligns incentives, and results in
the progress of both science and technology.
Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing.
How does that not hold back research, or merely "slow down" testing?
At the end is what I consider the real argument:
"You didn't do anything to create it, just discovered something that already existed."
Patents are for inventions. Patenting genes is like patenting Pythagoras' Theorem, and then arguing that everyone who uses that theorem must be licensed. Or like if whoever determined that oxygen has 6 protons then patented it and argued that everyone else must pay a license fee to breathe.
If you take the argument to its logical conclusion, you should realize that it's absurd.
I don't think your argument works. I mean, we've all seen the experiment where you stick metal strips into a lemon and it becomes a battery. Just because lemons exist doesn't mean we shouldn't be able to patent batteries that work the same way.
I think that the weakness in the gene patents is that a patent is necessarily an invention to accomplish a particular purpose but the pharma companies are filing patents as quickly as the genes can be identified, without the slightest idea of that it does, let alone what it can be used for.
My understanding is that the fig leaf that they hide behind is to simply say "it's for fighting cancer", but they have no idea if that's what it would eventually be used for. And the patent office makes no judgment about how effective a patent actually is for its stated purpose.
So here's my idea. It needs to get some specificity, but basically we should say that a patent must include a specific statement of what the invention's use is. And the patent would only protect that stated usage; creating another thing that's composed of exactly the same pieces as the patent mentions, but used for a different purpose, would be OK.
Your argument doesn't work either, because in that case you could patent the invention of a battery consisting of metal strips and lemons. Lemons would still be free to eat for everyone.
If they use the gene in a process, then that process is an invention and I have no problem with them patenting that invention. But just patenting the gene IS like patenting lemons.
Maybe my analogy was poor, because I think that your final paragraph meshes well with the idea I mention in my last paragraph -- I don't think we're actually disagreeing.
That is, the use of BRCA1 for a particular cancer treatment could be patented. But BRCA1 itself is (under my proposal) still fair game, both on its own as well as in other treatments that differ sufficiently from the patented one.
As you say, lemons should always be fair game. I can patent its combination with metal strips as a battery; that still leaves you free to patent an alternate use, e.g., as a cleaning agent.
What I was trying (poorly, it would seem) to get at was that the fact that we can observe an example of a mechanism or process in nature should not make something unpatentable. Seeing a stick balanced across a stone might give a caveman the idea for inventing the lever; the fact that nature prompted that invention doesn't invalidate it, I don't thing (although there might be questions about obviousness).
Regardless of the merits of the case, choosing to frame the gene-patent fight in terms of reduced access to health care and breast cancer research is a brilliant political move.
If you zoom out, though, and consider why patents exist in the first place, the idea that a research institution deserves to profit from the fruits of their research money is not that absurd. I think the question is not whether patents should be issued for biotechnology research, but instead what the best method is to protect investment in biotechnology research while not retarding future work.
Also, on a side note, patents may be infringed upon for research purposes. This is not holding back research, it is only slowing commercialized tests (or maybe just increasing their cost). There is nothing to suggest that the licensing terms offered by the patentee are exorbitant... The patentee is merely trying to recoup some of their investment in the commercialized result of their research.