In order to qualify for patent protection, an invention must meet three requirements: it must be novel, useful, and non-obvious. At first, it seems as though genetic sequences should not be eligible for patents, since they already exist in the natural world. However, scientists have found ways to isolate genes and sequences in ways that do not occur in nature, including the engineering of new forms of life, which led to the development of genetic patents. The first genetic patent was granted in 1906, for the isolation of adrenaline, while the first living organism patented was a bacterium which could digest oil and was upheld in the 1980 case Diamond v. Chakrabarty. Although genetic patents have benefitted society over the last century, recent scientific discoveries have called into question the morality and legality of some forms of biological intellectual property. We are now faced with an important question: where do we draw the line on what genetic material is patentable?
Opponents of genetic patents main argument remains that genes are naturally occurring and therefore not eligible for patent protection. In addition, there are now more than four thousand human genes which are protected by at least one patent, which people argue are harming society1. One commonly used example is Myriad Genetics, which holds a patent over BRCA1 and BRCA2, two genes highly correlated with breast cancer. Myriad charges $3000 to test for mutations in these genes, and other companies are forbidden from conducting the test due to the monopoly of patent protection2. The genetic patents for BRCA1 and BRCA2 are preventing some patients from getting tested, especially since the test is not always covered by insurance. Finally, critics argue that gene patents hinder scientific research, since labs will not be allowed to isolate certain genes.
There are many counterarguments to the criticism of genetic patents, as well as some obvious benefits to society. Myriad and others have argued that since genes do not exist by themselves in nature, the isolation of individual genes should be eligible for patent protection. Furthermore, the patent process provides a necessary incentive for companies to isolate genes, which leads to better diagnosis of diseases. The argument that genetic patents hinder scientific research does not seem convincing, since there have been multiple innovations in genetics during the period when genetic patents existed3. Finally, there are many other kinds of genetic patents which greatly benefit humanity, such as patents over proteins which are used in disease therapy.
Despite the arguments in favor of gene isolation patents, the Supreme Court decided in 2013 that “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” I tend to agree with the Supreme Court’s decision in this case, since the cons of genetic isolation patents seem to outweigh the pros. Namely, a monopoly over a test for breast cancer should not be legal since it directly harms women who cannot afford Myriads test and are forbidden from getting the test from someone else. However, it is a tough issue to balance since we also need to provide incentive for companies to develop new treatments and tests, which is the purpose of the patent system. Mainly, I conclude that genetic patents are necessary and useful to society and should be legal, but a company should have to go further than merely isolating a gene, such as inventing a sequence which did not exist in nature.
(1) McGuire, Richard. “Should Private Companies Be Allowed to Patent Genes?”. The New Yorker. 2 April 2013 (Accessed 15 May 2014). <http://www.newyorker.com/online/blogs/elements/2013/04/myriad-genetics-patent-genes.html>
(2) Rettner, Rachael. “4 Ways the Gene Patent Ruling Affects You”. Scientific American. 16 April 2013 (Accessed 15 May 2014). <http://www.scientificamerican.com/article/4-ways-the-gene-patient-r/>
(3) Cook-Deegan, Robert. “Gene Patents”. The Hastings Center. 2008 (Accessed 15 May 2014). <http://www.thehastingscenter.org/publications/briefingbook/detail.aspx?id=2174>