Gene Patenting Debate Continues - Round Two

    By Donald Zuhn --

Gene patenting.  It's a topic that Public Radio just can't seem to get enough of this summer.  In June, Dr. Hans Sauer, the Associate General Counsel for Intellectual Property for the Biotechnology Industry Organization (BIO); Joshua Sarnoff, Professor of the Practice of Law at American University's Washington College of Law; and Shobita Parthasarathy, Co-Director of the Science, Technology and Public Policy Program at the Ford School of Public Policy at the University of Michigan discussed the topic on WAMU, Washington, DC's leading public radio station (see "Gene Patenting Debate Continues").  And last week, San Diego's KPBS tackled the topic in a roundtable discussion entitled "Who Owns Your Genes?" on its "These Days" program.  The discussion, hosted by Maureen Cavanaugh, featured Kevin Keenan, Executive Director of the ACLU for San Diego and Imperial Counties; Stacey Taylor, a partner at DLA Piper; and Dr. Leonard Deftos, Professor of Medicine in Residence at the University of California, San Diego, and Adjunct Professor of Law at California Western School of Law.

After a primer on patenting from Dr. Deftos and Ms. Taylor, Mr. Keenan (at left) turned the discussion towards the recent lawsuit filed by his organization (on behalf of twenty plaintiffs) against the U.S. Patent and Trademark Office, Myriad Genetics, and the Directors of the University of Utah Research Foundation (see "Association for Molecular Pathology v. U.S. Patent and Trademark Office").  According to Mr. Keenan, the ACLU believes "the [Myriad] patent went too far, that it restricts not only the use of the gene information to develop tests and treatments but the sequence itself and any mutation that's arrived therefrom," adding that "whereas the patent system was set up to encourage science and progress, this patent has restricted that and limited scientific inquiry which, at its essence, is part of the First Amendment right to freedom of expression."  He characterized the patent system, which is "mostly set up in a good way to protect and encourage scientific inquiry and invention," as having "gone awry in this case." 

Surprisingly, Mr. Keenan contended that "the huge amount of investment that goes into this field is not necessarily at stake here," predicting that if the twenty plaintiffs in the Myriad case were to prevail, only the Myriad patent on the BRCA gene sequences, and not "all the tests and the treatments that come out of it," would be affected.  Mr. Keenan argued that the latter should be "the place where patents should be issued and where discovery and invention should be focused, not on limiting who can actually look at and use the gene and gene sequence itself."  To gene patenting proponents, who argue that patented gene sequences are not found in nature, Mr. Keenan said that the ACLU "would argue that the, for example in the BRCA1 and 2, that merely removing the junk DNA introns and purifying it does not sufficiently remove it or take it away from something that exists in all our bodies to merit a patent."

Addressing the argument, advanced by some gene patenting opponents, that such patents inhibit research, Dr. Deftos (at right) countered that:

The view that patent law somehow inhibits research is not well founded by attempts to look at that question in a non-anecdotal way.  For example, the National Association of Science had two studies in 2003, 2005, to try to address that question by actually interviewing scientists and the results of both of those studies were that there were really very, very few instances where scientists themselves felt that the patent law was inhibiting research.  So that's not a well-founded notion.  But there are many dramatic and anecdotal episodes where that seems to occur and I think that the breast cancer patents are examples of that.

Echoing comments made by Dr. Sauer during the gene patenting discussion in June, Ms. Taylor (at right) noted that because patentees are "looking at upwards of a $2 million or more cost to take someone to trial for patent infringement," biotech companies holding gene patents would be reluctant to sue university researchers (such as a number of the plaintiffs in the Myriad case).  Thus, she concluded that "the number of cases that actually have resulted in scientists really being either sued for patent infringement or put in legitimate fear of being sued for patent infringement is very small."  At the conclusion of the program, Ms. Taylor pointed out a dilemma facing those who seek to prohibit gene patents:

If we say that all materials that were naturally occurring at some point can't be patented, then we're creating, I think, some very unintended results.  Some of these same patients, the breast cancer patients, might no longer have the drugs that are used to treat them.

A complete transcript and audio webcast of the broadcast can be found here.  The "Who Owns Your Genes?" discussion was part of a series of science and ethics forums jointly sponsored by The Center for Ethics in Science & Technology and the Reuben H. Fleet Science Center.  The discussion on this topic is scheduled to continue on Wednesday, August 5th from 5:30 to 7:00 pm (Pacific time) at the Reuben H. Fleet Science Center.  Details and resources can be found here.

For additional information regarding this and other related topics, please see:
• "The Unwanted Consequences of Banning Gene Patenting," June 16, 2009
• "Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate," June 15, 2009
• "Gene Patenting Debate Continues," June 9, 2009
• "Association for Molecular Pathology v. U.S. Patent and Trademark Office," May 17, 2009
• "Gene Patenting and the Wisdom of Judge Lourie," April 12, 2009
• "Science Article Should Help Allay Gene Patenting Fears," December 17, 2008

Comments

[6]

Idk man, it's a tough call. Could go either way. I think congress should act in these types of situations. I further think that this just one more area that shows off the congress being broken and not fulfilling the role for which it was created. Imo let the default be no gov. intervention until congress gets itself together and acts.

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Idk man, it's a tough call. Could go either way. I think congress should act in these types of situations. I further think that this just one more area that shows off the congress being broken and not fulfilling the role for which it was created. Imo let the default be no gov. intervention until congress gets itself together and acts.