Wednesday, March 31, 2010

More on DNA Patentability

I've a little more time today to state my opinion on Monday's court decision overturning "DNA Patents". I'm not going to go look at the details - others can do that far better than me. I want to make a much broader based observation that goes far beyond the patents at hand.

What I see here is an attempt to maximize today's gain and forget about the future.

The patents at issue are about testing for the existence of two genes in women. If the women has the genes, she is at much greater risk for breast cancer. The test is quite expensive ($3000) and typically not covered by insurance. Invalidating the patents would open the area up to competition, lower test prices, and more women having invaluable knowledge that could save/extend their lives.

My take however, is that this test exists only because of the patent system we have in place. Given the advanced state of modern analytical technology, keeping the test and the chemicals used in it as a trade secret is pretty much impossible. Development of the test required a risky investment in research and development that may have not paid off at all. Since there are no competitive, alternative tests available, it certainly appears that these patents have stifled innovation, a common complaint against patents in general, but keep in mind that this is only temporary and that the patents will someday expire. Overturning these patents in specific and "DNA Patents" in general would do far more to stifle innovation in these areas and the stifling would be permanent. The long-term loss would in my mind negate any short-term gain. The judge in case is basically saying "It's great that our patent system has gotten us this far. Now let's change the rules so that we can take advantage of these advances today. Tomorrow's advances ? Well, don't ask me about that."

You can easily see this attitude reflected in larger society as well. Here are a couple of divergent examples:

20 years ago, my wife and I first lived settled in Woodbury Minnesota, a suburb on the eastern edge of St. Paul. At that time, only a few thousand people lived there. The town was originally a township (36 square miles) but 90% it or so was farmland. The residential areas continued to expand east into the farmlands, bringing commercial development, a pattern that continues to this day. My wife and I noticed an interesting pattern. Many of the new inhabitants after a few years had gone by would start to complain that the city was continuing to grow, that the growth was too much and that it should be stopped. We summarized this as "Everyone wants to be the last person to move into Woodbury," but it is just a variation of "the system is great today; let me take advantage of what others have done before, and change the rules so that others in the future can't.'

I also see this reflected in many political arguments of the ilk "I'm not going to use that _________________ (insert any construction project using public funds). Why should I pay for it?" The irony of course is most of the people stating this are graduates of public schools that they never paid for, users of public roads that they never paid for...Again, it's a variation of the argument "the system is great today; let me take advantage of what others have done before and change the rules so that others in the future can't."

This blog never has been about politics and I don't plan to start now. I'm only using this political example to illustrate my original argument. Anyone thinking that it is support for any and all public projects needs to reread everything until they get it. Remember, this is a post about the patent system and recent court case.


Materialist said...

I agree that pharma patents are necessary to support the expensive and long-term R&D process. I don't like gene patents, though, because:
1 It is too much like patenting a person - and many affected people will have given no consent or received no compensation.
2. It is also like patenting a disease. Imagine if someone said, "I have a patent on H1N1. If you want to do diagnose or do lab tests on H1N1, you need my permission and pay for each instance." Not cool.
3. The academic drive to identify important genes, supported by NIH funding, is sufficiently strong without patentability.

John said...

Some good points, especially #3.

This is definitely an issue where emotions can't just be overlooked. Genes are not just in humans, but then look at the reactions of many to GM food, GM animals...

The days of patenting one or more genes by themselves are gone. The PTO demands a utility for it, and that utility is generally outside a body. If you find a different utility, you can get another patent.

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