There’s a question that’s been around for about 30 years: whether private, for-profit companies should be allowed to gain exclusive control over knowledge about our genes.
Should private interests profit from their understanding of the human genetic code or from tests or cures they may – or may not – be willing or are able to derive from this knowledge? Is such control, encouraged by research funding arrangements and facilitated by patent law, the best way to serve the public good and public health?
The American Civil Liberties Union says “no”. Last month the union launched a court action on behalf of scientific and women’s health groups and individual women at increased risk of hereditary cancers. The action challenges the patents on two genes held by a company called Myriad. The genes are linked to hereditary breast and ovarian cancer and the patent grants Myriad exclusive rights to control and profit from the testing of women with a family history of such cancer, to conduct further research on the gene and to control and profit from therapies that might result from the research.
If the union wins, it’s not just the patent on Myriad’s genes that may be rendered invalid but the tens of thousands of other patents on human genes, too.
Luigi Palombi, a patent lawyer recently interviewed on the ABC’s Background Briefing, thinks this is fair enough. According to Palombi, private companies should never have been allowed to patent genes in the first place. Not only are such patents unfair (Myriad only identified fragments, but was granted control of the entire gene), but they violate the legal prohibition on patenting abstract ideas or the laws and products of nature. Patents are ineffective and inefficient, reducing the competition and co-operative endeavour needed to understand and exploit genes for human health and limiting women’s options regarding their medical care. Palombi says that instead of complaining about the potential loss of their genomic patents, the companies that currently hold patents should be grateful. They always knew they were stretching the limits of patent law, and the fact that they’ve been getting away with it for 20 years means “they’ve received an advantage that, frankly, they were not entitled to receive”.
In 2004, the Australian Law Reform Commission completed an 18-month inquiry into intellectual property rights over genetic materials and related technologies, though its recommendations have yet to be implemented. The Senate community affairs committee just finished taking submissions on the wisdom of granting patents in Australia over genes and their products, with public hearings to commence shortly.
The main problem for those hoping to wrest control of the human genome from the profit-seekers is to counter the self-interested claim by biotechs and big pharmaceutical companies that they are the only ones who can do the research and development needed to unearth the secrets of the genome. Such companies argue that in exchange for their contribution to human health, we owe them proprietary control and profits.
This is unadulterated rubbish. Patenting is just one component of a framework for facilitating scientific and medical innovation.
The union case is about rejecting patents as neither the best nor the right way to promote and protect genetic knowledge and innovation. It is not too late to unscramble the egg.
Gene Patents Violate Civil Liberties Sunday Sun-Herald (Sydney)