Genes and Gene Patenting: Is it Fair?
Yesterday I was a “lay debater” (not to be confused with “lady baiter”) at this event at Exeter University. It was meant to follow the format of radio 4’s “The Moral Maze” but I fear the lay debaters did not have the skill or preparation of the BBC panel. So our questions were not what as probing as they might be. Nevertheless, it was good fun, I learned a lot, and I think the audience did as well – mainly because of the quality of the expert witnesses.
I thought that Gene patenting was about taking out a patent on a piece of DNA and thus preventing anyone else using it. This seems absurd. But apparently there have only been a very few patents granted of this type and they are something of an aberration and not really in accordance with patent law. Most patents involving genes are actually patents for a specific use of genes and others may continue to use those genes for different purposes.
The interesting issues weren’t specific to genes. It seems like taking out and enforcing a global patent is an expensive and time consuming task. The patent has to be filed separately in each country that you wish to hold it and each country has slightly different laws and procedures. You then need to enforce it by somehow checking that no one else is using your intellectual property and taking appropriate legal action if they do. Large corporations have the resources to do this. Universities have been trying to do it over the last 20 years but not very successfully (most US universities have a patent department but only a handful are making money). Smaller organisations, particularly in developing countries, will find it very hard. So in that sense the patent system – whether it be for a genetic invention or not – is unfair.
But unfair does not necessarily mean a bad idea. The expert witnesses were quite sure that there would be significantly less innovation without the patent system. Corporations need to see some guarantee of return on investment. And there are other substantial benefits. If you take out a patent then you must publish it. So the results of your research become available to the world and patent law allows others to use those results for research (as opposed to profit) without restriction. If there were no patent system then it seems likely that corporations would keep their inventions secret for far longer.
I was struck by how the patent system seems to struggle with the rate of change in science and globalisation. It takes four or five years for a patent to be approved. This means that patents are getting approved now based on genetic inventions in the late 90s and what was very inventive then appears trivial now. There are also issues around the use of genetic or other natural resources in another country. You cannot take out a patent based on something that is public knowledge. But how can you prove public knowledge when it is, for example, knowledge of the medicinal properties of a plant in a developing country passed down as an oral tradition? The mechanisms for resolving these dilemmas rely on patent officers with no consistent training or expertise and then the courts.
My strong impression at the end of the evening was that we need a patent system, even if it is unfair, but it also could do with some drastic improvement in how it works.
I thought that Gene patenting was about taking out a patent on a piece of DNA and thus preventing anyone else using it. This seems absurd. But apparently there have only been a very few patents granted of this type and they are something of an aberration and not really in accordance with patent law. Most patents involving genes are actually patents for a specific use of genes and others may continue to use those genes for different purposes.
The interesting issues weren’t specific to genes. It seems like taking out and enforcing a global patent is an expensive and time consuming task. The patent has to be filed separately in each country that you wish to hold it and each country has slightly different laws and procedures. You then need to enforce it by somehow checking that no one else is using your intellectual property and taking appropriate legal action if they do. Large corporations have the resources to do this. Universities have been trying to do it over the last 20 years but not very successfully (most US universities have a patent department but only a handful are making money). Smaller organisations, particularly in developing countries, will find it very hard. So in that sense the patent system – whether it be for a genetic invention or not – is unfair.
But unfair does not necessarily mean a bad idea. The expert witnesses were quite sure that there would be significantly less innovation without the patent system. Corporations need to see some guarantee of return on investment. And there are other substantial benefits. If you take out a patent then you must publish it. So the results of your research become available to the world and patent law allows others to use those results for research (as opposed to profit) without restriction. If there were no patent system then it seems likely that corporations would keep their inventions secret for far longer.
I was struck by how the patent system seems to struggle with the rate of change in science and globalisation. It takes four or five years for a patent to be approved. This means that patents are getting approved now based on genetic inventions in the late 90s and what was very inventive then appears trivial now. There are also issues around the use of genetic or other natural resources in another country. You cannot take out a patent based on something that is public knowledge. But how can you prove public knowledge when it is, for example, knowledge of the medicinal properties of a plant in a developing country passed down as an oral tradition? The mechanisms for resolving these dilemmas rely on patent officers with no consistent training or expertise and then the courts.
My strong impression at the end of the evening was that we need a patent system, even if it is unfair, but it also could do with some drastic improvement in how it works.
posted by Mark Frank at 2:26 pm
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