Never Mind the Epidemic, Who Gets Patent Rights For the Cure?

A virus that has so far killed nearly thirty people in seven countries faces a non-medical obstacle to treatment: Patents. Reader Presto Vivace writes with this excerpt from the Council on Foreign Relations: "At the center of the dispute is a Dutch laboratory that claims all rights to the genetic sequence of the Middle East Respiratory Syndrome coronavirus [MERS-CoV]. Saudi Arabia's deputy health minister, Ziad Memish, told the WHO meeting that "someone"--a reference to Egyptian virologist Ali Zaki--mailed a sample of the new SARS-like virus out of his country without government consent in June 2012, giving it to Dutch virologist Ron Fouchier of Erasmus Medical Center in Rotterdam."

Comments

It's not a patent

[ColdWetDog]

It's a Material Transfer Agreement that means you agree to some restrictions including sharing / ceding patent rights. (That's OK, it's Timothy, we don't exactly expect accuracy here.)

But the real answer is 'so what'? Berne Convention, be damned. Countries with a vested interest in this issue aren't going to let some weenie little Dutch lab push them around.

And they got the material illegally in the first place.

I'll go back to breathing normally now.

Re:It's not a patent

[postbigbang]

The sequence is data. I don't think patents cover data. You could modify the data, but a patent claim is dubious. Working pi to infinity-2 is data. It's not patentable. My DNA, your DNA, is not patentable. Mod them uniquely, and you're Monsanto.

Re:It's not a patent

[PolygamousRanchKid]

I'll go back to breathing normally now.

. . . not if you get the Middle East Respiratory Syndrome coronavirus, you won't . . . !

Re:It's not a patent

[St.Creed]

It's not patented... *sigh*

What the lab did was to sequence the genome and then (oooh evil) expect to get paid for that work if someone else wanted to use THEIR work to build something with that. That's the modus operandi of every other genetics lab in the world - they all analyze stuff and then provide results to paying customers.

The Dutch lab is not blocking anyone from sequencing the genome themselves - that's a problem with *Saudi-Arabia*, they didn't even want to send the virus out to anyone in the first place for fear it would reflect badly upon their country. If the Saudi's sent out the virus to the CDC and other labs, for instance, this issue wouldn't be an issue, now would it?

The article is completely and wildly off the mark, and the summary is confusing the issue even more, if that's even possible.

Re:It's not a patent

[the gnat]

The article is completely and wildly off the mark, and the summary is confusing the issue even more, if that's even possible.

This is at least an improvement over the previous article on the same subject, which didn't even identify which IP claims were causing problems. But I agree, there is some incredibly sloppy reporting going on here. I realize that the storyline of "evil Western profiteers kill people with patents" is very tempting for lazy journalists and activists, and there are genuine problems with the patenting of gene sequences, but that's not even what's going on here. This is purely a case of bureaucratic infighting and ass-covering, and the article couldn't point to a single instance where Erasmus University actually prevented anyone from researching towards a cure.

Re:It's not a patent

[rtfa-troll]

It's not a patent It's a Material Transfer Agreement that means you agree to some restrictions including sharing / ceding patent rights. (That's OK, it's Timothy, we don't exactly expect accuracy here.)

I hate to be the first Slashdotter to defend our editors, but he didn't say "a patent". He said "obstacle to treatment: Patents". And in this case it's 100% right if you read carefully.

The Saudis don't want the material transferred from their country except by a special mechanism which guarantees them the Patent rights. That is slowing down the rate at which the virus gets to people. The lab which has a sample doesn't want to distribute it without special agreements about patents. Again, this slows down the transfer. If the lab was not motivated by patents then it could simply say "all patents based on this material must be shared freely and without patents", however they don't do that.

In all cases; if there were no potential future patents involved then the information could be shared easily and quickly. Patents and greed about them are the problem here.

Re:It's not a patent

[AK Marc]

"Virus data placed under EULA"

There, happy?

Re:It's not a patent

[PopeRatzo]

What the lab did was to sequence the genome and then (oooh evil) expect to get paid for that work

Fine, so pay them for their work.

Find out what the researchers and lab techs were being paid hourly, add up the amount of time they spent, add 10% for a reasonable profit and cut them a check.

They're already amortizing the equipment, so maybe kick in another 1 percent for the cost of electricity and space for the lab. Find out how much of the work was done at publicly-funded institutions and send the Dutch lab a bill for that.

Patents for gene sequences should not exist. They're going to cause problems far in excess of their value to society.

Re:It's not a patent

[KGIII]

Your facts get in the way of my getting to use this comment:

"Ah yes, we're exporting Americanism everywhere."

Damn you! I wasn't even going to read the article, I was just hoping for somewhere to place that comment. Now I see it's not even valid. Meh... I could probably STILL use it down-thread and someone will either mod it or reply to it. There's something to be said for just reading the summary, it's definitely not fair if you have to go knowing stuff and spouting facts and stuff. That's just not cool, man. It's not cool at all. ;)

(Thanks for the information by the way, I appreciate it.)

Re:It's not a patent

[rtfa-troll]

The Saudis don't want the material transferred from their country except by a special mechanism which guarantees them the Patent rights.

Er.. not really right, it's a dutch genetics lab that has a sample of the virus, and are making people who use the data or sample sign an MTA (Material Transfer Agreement), that basically says you can't do commercial things with it without paying them, non-comercial research stuff all fine.

From this article hare

The Convention on Biological Diversity (1992), to which Saudi Arabia and the Netherlands are parties (as are practically all other UN members except the US), establishes obligations for access and benefit-sharing for biodiversity, including prior informed consent of the providing country and mutually agreed terms for utilisation of the material. These obligations are further detailed by the Convention's Nagoya Protocol, which is presently gathering ratifications for entry into force.

The situation of Erasmus having obtained the virus and placed intellectual property claim over it without the consent of the Saudi government and without an agreement for benefit-sharing appears to be at odds with the requirements of the Convention.

Basically the Saudis and the Dutch lab are both fighting over the IP rights.

The fishy bit seems to be that the Saudi's didn't seem to want the rest of the world to know they had a little disease outbreak, and it reads a bit like they were trying to supress anything to do with it, and now seem to be making excuses.

(And none of this stops you taking your own sample from a parient with the virus and doing your own genetic analysis...

I would be really really interested to the reason for this. Your suggestion is possible; Look at the quotes in my other comment though and you see that part of the delay is probably because they simply didn't realise they had a new disease. The most interesting bit though is that it seems that they only just agreed to a new transfer

“But now... we’ve got an approval to move these samples and they will be shipped for testing,” he said.

(from this Alarabiya article.) and note this, from the original article (with my emphasis)

The PIP augments the International Health Regulations, creating a series of understandings that are flu-specific regarding sample sharing, patents, and profits from products derived from viral discovery. Chan's response to Memish's accusations no doubt stems from her concern that the Saudis could invoke provisions of the flu-specific PIP, demanding control over the MERS-CoV samples, patents, and products.

In other words; the Saudis now believe that they have a legal basis for control, even if they share. Before they were worried about this. And notice, the same article mentions that the Indonesians did exactly that so this is not something that's being thought about for the first time.

One suspects that you did not read the article... which is normal for slashdot, but given your username I would have expected different ;)

I took my username specifically to remind me to read the article. In this case, the trollish bit is that I read not just the original article but a few more. The accusation is good though; keep it up and keep trolling all of us with it whenver you can.

Re:It's not a patent

[ebno-10db]

Ron Fouchier is the same guy that was burnt to the ground by the US government when he and his lab wanted to publish that dangerous virus recipe in Nature ... It's either "let him share information" and publish in Nature and Science without having senators screaming he's a terrorist and they should nuke the Netherlands

Apparently your definition of "burnt to the ground" includes "publication was delayed". You make it sound like he was tortured by the Inquisition. Also that paper was not about a virus that exists in the wild (like this one), but about how to modify a dangerous virus so that it was more communicable to people. While his intent was scientific, it does sound a lot like how to build a better biological weapon. Publishing about a virus that already exists does not.

t's either "let him share information" and publish in Nature and Science without having senators screaming he's a terrorist and they should nuke the Netherlands

Bombast from congress? Who would've imagined. Being Dutch rather than American, the hot air probably dissipated before it could hit Fouchier on the other side of the Atlantic.

Cuts both ways

[Anonymous Coward]

If they're claiming the rights to the virus, they have to take the wrongs along with it. Hold them accountable for the damage the virus does, up to and including loss of human life.

Re:Cuts both ways

[PopeRatzo]

Hold them accountable for the damage the virus does, up to and including loss of human life.

Yes, the board, the shareholders and all C-level management should be held liable, personally.

When you weigh the number of problems that would be solved immediately if the principals in a corporation were held personally liable against the benefits to society to having principals be protected from liability behind a corporate shield, I think it would be pretty clear the personal liability should exist.

There would still be people willing to take the risk, since the rewards are great, but at least they'd have to give half a second to the consequences of their actions.

Re:Cuts both ways

[the gnat]

If they're claiming the rights to the virus

They (Erasmus University) aren't - read the article. All they're saying is, "if you want us to send you our data, you need to agree not to commercialize it without us, and you need to release us from legal liability." They're not claiming rights to the virus at all, only their own analysis. There is nothing preventing Saudi Arabia from performing their own analysis independently and completely ignoring the Dutch. In fact, what's really going on here is that Saudi Arabia wants to hold on to any intellectual property rights deriving from the virus, and they're concerned that the Dutch may fuck that up. If people die as a result, the fault lies entirely with the Saudi government for dropping the ball.

Just make patents full ownership

[Solandri]

You reap all the rewards, but you're also responsible for all the harm. So if you want to claim you own a virus, then you're also fiscally and criminally liable for any harm that virus does. It also takes care of the Monsanto case where farmers who unknowingly have GMO crop blown onto their fields are successfully sued for patent infringement, but when organic farms who don't want the GMO stuff try to sue Monsanto for the same thing, Monsanto claim they have no responsibility for Nature spreading their seed around.

Re:Just make patents full ownership

[DMoylan]

they'll just blame people making illegal copies and sue their next of kin :-)

Re:Just make patents full ownership

[linear a]

I feel that one euro per unlicensed copy created by the defendant is fair compensation your honor.

Re:Just make patents full ownership

[KGIII]

I hate to defend Monsanto but enough is enough. By now you've had time to read, you've seen the many posts, you've had the chance to learn. Monsanto has done none of those things you just accused Monsanto of actually happened (except maybe claiming they don't control nature, they don't). Here's a link:

http://en.wikipedia.org/wiki/Monsanto#Legal_actions_and_controversies

No, that doesn't list all of them but don't you think that they'd include cases such as the types you're claiming they have had? There's no vast conspiracy involving Wikipedia either. If they had cases like the ones you mentioned they'd be listed on that site. They haven't sued folks for having some seeds blow into their field. They've sued people who have intentionally, knowingly, violated either their agreements or their patents.

Wow... I can't believe I'm defending Monsanto. I need to go shower. I don't know where this rumor started but I recall watching some movie that made these claims. I then meandered over to that mystical fact checking box in the corner of my living room and had myself a peek. I typed in various mystical arcana and determined that, frankly, Monsanto is still an asshole but, frankly, didn't do half the stuff people accuse them of doing. It is like a repeat of the McDonald's Hot Coffee Suit.

Bill them then...

[Roogna]

If they "own" the virus, then send them the bill for ALL expenses related to the disease and it's effects. Put a lien on all their patents until they pay up.

Re:Bill them then...

[St.Creed]

RTFA. They didn't patent it, they're not blocking anyone. The problem is with Saudi-Arabia, not with the Dutch lab. The article is borderline slander, but the summary is outright misleading.

From the article:
"Eleven months ago, Zaki told the Guardian, he was called in as a consultant on a mysterious case in his Jeddah hospital. Zaki tried to identify the virus, but the patient died less than twenty-four hours after he received the sample. Soon, a second case came his way, and Zaki mailed a sample to his friend, Fouchier. Zaki sent a notice in September 2012 to ProMED, a disease alert system run by the Infectious Diseases Society of America. Under pressure from the Saudi government, Zaki's hospital in Jeddah fired him when the ProMED notice was posted, and he moved to Cairo."

Note the timing: he was fired after the alert got out that there was a problem.

Without the Dutch lab, there would have been no sequence and NO ALERT because the Saudi govt. was trying to keep it quiet. That was at a time that patients were already dying outside Saudi Arabia too. The whistleblower who saw two dead patients and a potential disaster and took action, is fired. Note that if they sent the virus to *ANYONE ELSE* the virus could have been sequenced a dozen times over, easily - it's not that hard. The problem isn't with a Dutch lab that asks for payment in return for results and a cut of the potential profit. The problem is with the Saudi government that fires people who actually try to alert the world.

Re:Bill them then...

[ebno-10db]

Yes, Saudi Arabia screwed up (what a surprise) by trying to keep the problem under wraps. However, it's disingenuous to say there is no problem with the "Dutch lab that asks for payment in return for results and a cut of the potential profit". FTA:

the Dutch team has not patented the viral genetic sequence but has placed it under an MTA, which requires sample recipients to contractually agree not to develop products or share the sample without the permission of Erasmus and the Fouchier laboratory

They are not looking to be paid for their work in sequencing the virus, but to get a cut of any treatment that may be developed by controlling who is allowed to develop a treatment. Why, because they received a sample first? Forget debating the so-called intellectual property rights aspect of this. Regardless of how Saudi Arabia screwed up, this is a serious threat to public health. Currently in Saudi Arabia, and potentially the rest of the planet. I don't know what you'd have to do under Dutch law, but if it were in the US it should be seized under eminent domain. Before some "property rights" fanatic gets their panties in a twist, I'll say the Supreme Court's decision in Kelo v. City of New London was absurd. Transferring private property from one private owner to another isn't a public purpose. However dealing with anything that's a threat to the public health is very much a public purpose.

Re:Read the Cited Article to the End

[the gnat]

The Indonesians, and the Saudis, want to put the lives of their "throw-away" citizens (third-worlders, Muslims, riff-raff, you know) ahead of the profits curing only those who can afford the cure and sucking off funds of charities to pay the margins their patents etc. add on, may provide them.

I was going to respond to this, but another comment already made my point. The Indonesians and Saudis are grandstanding, because everyone hates Western pharmaceutical companies (I don't like them either) and they make easy targets. There is still nothing stopping them from making their own cures if they so desire. I think Erasmus University is being pretty stupid about this (and probably unethical as well), but most of the controversy is being manufactured by corrupt third-world governments. As usual.