Comments on: How Genes Are Like Plutonium

By: Jaydee Hanson

Jaydee Hanson — Thu, 21 Jan 2010 22:16:04 +0000

I think that the plutonium analogy is quite apt. Harrison Brown, one of my professors, supervised the Oak Ridge/Manhattan Project work on isolating plutonium. He and one of his colleagues were granted a patent on their process for isolating plutonium, but not plutonium itself. See: http://www.freepatentsonline.com/2822239.html Moreover, Dr. Brown used money that he received from his research activities to help found the Federation of American Scientists and when he died, he was the editor in chief of the Bulletin of Atomic Scientists. Dr. Brown taught me and many others that scientists and inventors had a responsibility to use their discoveries carefully and make them contributions to world peace and health. (Yes, I know that he helped make the atomic bomb, but he sure tried to make up for it in his later years.) I never discussed gene patents with him, but I think he would find them contrary to the promotion of scientific research. Patents on processes derived from genetic information could be patented, as that is the inventive step, but patents on the DNA sequence itself should never have been granted by the US PTO. The scientists and PTO of Harrison Brown’s time were right not to patent discoveries; we need to go back to that practice.

By: David Koepsell

David Koepsell — Fri, 24 Apr 2009 15:20:53 +0000

Brian, thanks for the clarification, but the delay between filing and publication can be as much as 18 months, which is still a very significant period in which plenty of valuable research can later turn out to be for naught. See this entry for the current general time-periods between filing and publication in both the US and Europe: http://en.wikipedia.org/wiki/Submarine_patent
It’s better than pre-1995, but still, the delay and impact on research is significant.

By: Brian Hicks

Brian Hicks — Fri, 24 Apr 2009 13:44:02 +0000

While you make many valid points about the misuse of patents, one statement, “…. between filing and granting of a patent, information in the patent remains secret.” is not correct. The patenting process dramatically excellerates the sharing of public knowledge that would almost otherwise be kept a trade secret, even before the document is evaluated for patentability. All patent applications become public documents approximately six months after they enter the utility stage.

By: David Koepsell

David Koepsell — Thu, 16 Apr 2009 10:35:54 +0000

…sorry, BRCA1 and 2…

But note, the Europeans have done something a bit more reasonable, allowing the claims on new and inventive processes, but disallowing claims on the sequences themselves:

http://www.phgfoundation.org/news/4412/

By: David Koepsell

David Koepsell — Thu, 16 Apr 2009 10:33:26 +0000

Myra,

Here’s how the Canadian govt and its provinces are responding to the Myriad patents on BCRA1 and 2:

http://www.cancer.ca/Canada-wide/How%20you%20can%20help/Take%20action/Advocacy%20what%20were%20doing/Gene%20patenting/Breast%20cancer%20genes/Background%20on%20the%20patenting%20of%20BRCA1%20and%202%20genes.aspx?sc_lang=en

By: David Koepsell

David Koepsell — Thu, 16 Apr 2009 08:37:08 +0000

In response to Logan, clearly you don’t see the ridiculousness of the “isolated and purified form” requirement as made clear by my rather prominent analogy and reference to plutonium, which also requires “isolation and purification.” One can isolate and purify any number of naturally occurring compounds and still never warrant patent protection, because the chemicals or compounds themselves are not created by human invention. One can get a patent on the process, but not the compound, unless it doesn’t pre-exist in nature, despite one’s honest effort in “isolating” it. Many scientists like Church, Sulston, Collins, Dawkins, and others see the smokescreen of the “isolation and purification”requirement and similarly oppose gene patents. I fully support man-made genes (e.g. genetically engineered through intentional intervention) receiving patents, but the evidence is overwhelming that significant numbers of gene patents, such as those specifically referenced in the article, are for discoveries, not inventions. The two examples cited in the article satisfy your challenge, moreover.

By: Logan

Logan — Wed, 15 Apr 2009 17:29:45 +0000

The central thesis of your argument can be summarized in your concise statement, “Unmodified genes have been granted patents, and this impedes science.” The article cites thousands of unmodified gene patents. I challenge you to cite one specific patent claiming an unmodified gene. Only a small bit of research would be required to discover that genes are typically claimed in their isolated or purified form. Further, only a basic understanding of science is required to understand that genes do not exist in nature in their isolated and purified form. Thus, gene patents do not claim a compound found in nature.
The article goes on to suggest that the new PTO guidelines are not stringent enough to exclude those genes with no inventive use from the category of patentable subject matter. Again, even a cursory review of the PTO guidelines would reveal that the purpose of requiring the function of the gene to be known is to avoid granting patents on subject matter that is not useful. However, the “use” need not be inventive unless the patent is on said use. Patents claiming nucleic acids, as chemicals, need only demonstrate the function of the invention as the function of the protein (amino acid). More “use” is required than merely encoding proteins.
The facts cannot be argued, though the policy conclusion of the article can. Patents encourage innovation and reward inventive contributions with limited property rights in the invention for 20 years. Without patents to protect these biotech inventions, private industry would not have incentive to develop therapies and cures for diseases. Thus, engineers and scientists do benefit from these types of patents, assuming they take advantage of modern medicine.

The information in patents is published 18months after the filing of the application as required by statute. Thus it does not remain secret until grant as the article states.

While I disagree with you central thesis, I understand that it is a fundamental belief that many Americans subscribe to, and I respect that. However, I encourage you to do the minimal amount of research necessary to write a factually accurate essay to support your argument. Misstatements of fact do nothing more than undermine your credibility and that of the article.

By: Myra

Myra — Tue, 14 Apr 2009 08:56:56 +0000

An Israeli cancer genetics researcher stated in an email to mt on April 11, 2009:
“>With regard to what you call the Myriad monopoly, as far as I know they do
>not have a patent on mutations in both genes but maybe only on one of them.
>We, in Israel, are testing freely and not through Myriad (partially because
>we do not think that a commercial company can have a patent on the Jewish
>genome…), and of course the cost of the test in our labs is a fraction of
>the cost in the US (about $60 for the three founder mutations). If in the
>future you wish to test through our system (that has tested for these
>mutations many many times) please fill free to contact me.”

By: Myra

Myra — Tue, 14 Apr 2009 08:51:06 +0000

How can I help get this legislation passed: HR 977, the Genomic Research and Accessibility Act first introduced in 1997 by Rep Xavier Becerra (D-CA) to ban the practice of gene patenting.
Fortunately, I have health insurance through my employer. My health insurance company agreed to pay for my BRCA genetic test. Result: I have the BRCA2 6174delT. My daughters also have health insurance and are able to access this expensive MYRIAD Genetics test. One daughter is negative. We are awaiting the results for the other. I have just had risk reducing salpingo-oophorectomy surgery.
AS you so clearly state: “Patenting unmodified genes rewards discovery, not invention.” The process can be patented, but not the gene itself. Perhaps someone can find another unique, less expensive process to sequence the gene. Why have such unethical patents been allowed. I just received an email from an Israeli researcher. He states that in Israel the patent on the BRCA genes is NOT accepted. He will help anyone get the test through an Israeli lab for $60.