Should DNA be Patentable?

nexex writes: "This story seems brings the patent debate home; specifically, should a company or person be able to 'own' your DNA? Obviously researchers want to profit from their discoveries, thus funding new research. But critics counter they are profitting at the expense of our health, citing restrive screening licenses for things such as breast cancer and Alzheimer's. Citing a figure from a UK activist group, 500,000 gene or gene sequence patents have been applied for worldwide. Another excellent article on this issue from Salon.com was from a couple years ago."

Comments

Patent AIDS, Herpes, Malaria...

[Calle Ballz]

Put a patent and a copyright on the strands that make up diseases like AIDS, Herpes, Malaria & the common cold. I'm tired of catching a cold, and I sure as hell don't want to get any terminal diseases in the near future. If you think about it, DNA is really a kind of software, it is intellectual property that's been unclaimed. Well dammit someone should claim that IP and protect it's right to not be copied unless specifically authorized by the rightful owner and in compliance with the DMCA!

Patenting therapies, not the gene

[HEbGb]

Two requirements of a patent are the existance of an 'inventive step' and another is 'novelty'.

Patenting a gene itself (if that's what's done) is nothing more than patenting a transcription of an already-existing structure. It won't hold up - there is no novelty, and no invention - you're just writing down what already exists.

However, an inventive, novel step could be the application of the knowledge contained in the gene for specific therapies which were developed. These can and are patented, and I don't see anything wrong with this.

I think there's a common misconception that these companies are patenting genes themselves-I think that with few exception, this isn't the case - they're patenting applications of the knowledge to new therapies, much like someone who has studied the physiology of the body can patent a drug to treat an illness. You're not patenting the mechanism of the body, you're patenting a tool based on that knowledge.

Re:Patenting therapies, not the gene

[WillWare]

an inventive, novel step could be the application of the knowledge contained in the gene for specific therapies which were developed. These can and are patented, and I don't see anything wrong with this

Patenting genes that occur in nature would be an obviously questionable practice, and it worries me that this issue has been kicking around unresolved for at least two years. But the thing you are describing here also worries me: it sounds like you're saying that the genetic information is properly unpatentable, but having sequenced it, I could apply for a patent controlling ANY useful application of that information. I would prefer to see patents limited to controlling a specific application of the information.

But the obviously worst-case scenario would be where any fool could operate a sequencer for a couple weeks, and patent whatever he gets, regardless of whether an application is apparent at the time of filing.

Please understand..

[mindstrm]

They do not Patent DNA. They did not invent DNA.

THey can patent specific genes for a specific purpose.

So if they discover a gene that permits them to do something interesitng, like grow you a third arm... they can patent that.
If they discover a gene that will make you smarter... they can patent that.

They cannot patent genes until they have a use for them.

Re:Please understand..

[sam_handelman]

All of what you say is, or ought to be, true.

However, Biotech companies are interpreting these patents in a very broad way, as you can see from the article.

The more sophisticated the biotech you're trying to develop is, the more burdensome these low level, frankly not-very-clever patents become.

By analogy in software, imagine how difficult it would have been to write Kazaa if quick sort, merge sort and the binary search were all patented. Supposing you needed all of them (and that bubble sort wouldn't do, but stay with me), you'd need to enter into negotations with each of three different parties who hold the patents, and get permission from each of them, before you could finish Kazaa. Now, Kazaa, even though it maps to the set of integers, is a legitimate achievement; the people who wrote it deserve protection of their coding investment. Merge Sort, while a cute idea, is NOT. There is a qualitative difference between the two.

The biotech patents that are being issued are, likewise, so basic, and generated on such an industrial scale - companies just churn them out as fast as they can - that they are begining to hamper innovation.

These biotech companies often won't enter into negotations about selling their intellectual property. They're flush with cash, by and large, and if they don't know what their property is worth, why would they sell it?

When you're trying to develop something really new and sophisticated (the biotech equivalent of a complete piece of software) you may need literally dozens of tiny processes which someone has patented. Even if none of these patents will hold up in court, the risk that not one but several parties could sue you to defend their interests - usually in different jurisdictions! - makes the legal risks of implementing such a procedure prohibitive, even if none of these patents would really stand up in court.

I have to add that Columbia university, where I am a graduate student, makes more money from patents (in particular one, rather basic, biotechnology patent) than any other University in the world, including the combined patent income of the Universities of California (my BS & BA are from UCSC). That money is what pays my stipend.

Open Source

[DeadBugs]

I am releasing my DNA under the GPL license.

Legal argument for why genes are patentable

[TekkonKinkreet]

Caveats:
a) I know nothing about genetics or law myself. I learned all this from the genetics law expert I sat next to on a plane last week.
b)The duration of the explanation was part of a flight from Salt Lake to Seattle
c) I had a first class upgrade and took full advantage of the free Heinekens. That is to say, I hope I'm remembering this right.

Goes like this. It's illegal to patent an object, right? But a sequence of DNA in addition to containing the gene you're interested in, is always full of random and irrelevant pairs. So what they want to patent is not the gene as it naturally occurs, with all the junk DNA in it, but a cleaned-up version containing only those bits which are relevant to the patent. This is not a naturally occuring sequence, and so is patentable. So to answer the fellow who says "wait, I have that gene, every cell of me is prior art," no, you don't have that exact gene, yours contains different randomness. Yes, this sounds like a legalistic dodge to me too, and the expert acknowleged the point, but there it is.

A further wrinkle is that they patent the transcriptase necessary to make the cleaned-up gene, not the gene itself, though I had a sufficient buzz by that point in the conversation that I was ready to talk about football. :)

patentable only if

[Alien54]

DNA should be patentable only if

they can document the functionality down to the level that computer code is now

The functionality is one that is not previously existing or discovered in nature.

a unique combination of features where the majority of the code is new work. The thought here is that Ford company probably could not patent a new engine unless they owned the patents on the component parts and technologies. But there are an indefinite number of ways to build car engines.

Thus one probably could not patent a fire breathing dragon, but could patent the various implementations of the various subsystems.

patenting huge random chunks of DNA, hoping that something practical will come out of it is not the way to go.