Should Human Genes Be Patented?

In late November, the Supreme Court was evaluating whether isolated genes are products of nature, which should not be patented or created by humans, therefore eligible for patent protection. Myriad Genetics, a Utah company holding patents on genes that correlate with increased risk of hereditary breast and ovarian cancer, states that isolated DNA molecules were products of human ingenuity, have new and significant utilities not found in nature and are worthy of protection. Zintro experts share their opinions on how the Supreme Court should proceed with similar cases.

As intellectual property manager, Shulamit Hirsch indicates, companies that wish to develop new drugs or new diagnostic kits, invest a lot of money in such research and need to get the strongest intellectual property protection for the new compound, drug or gene. “In case of human genes, for example genes that contain a certain mutation that is connected to a disease state, being able to know the sequence of the gene and to identify it in a sample of a human, may have huge diagnostic importance,” Hirsch explains. “Assuming that the gene in its individual form, does not exist in the human body, plant or any other organism, but as part of the whole genome, I see no reason why not to protect isolated genes in patents. Such protection provides a 20-year monopoly to companies to develop the diagnostic kit and commercialize it and without such monopoly companies would not have the right conditions to spend money on research.”

Jon Cameron, an expert in intellectual property licensing to consumer goods companies, is in favor of exploring new uses and rewarding those individuals that use their resources to discover ways to improve our lives. “The issue of allowing isolated DNA molecules, which are products of nature, to enjoy patent protection is a contrast of central concepts in patent law,” notes Cameron. “However, patent law and rules are designed to both create novel inventions and reward useful new solutions. Without such patent protection, we may discourage the very advancement that so many of us will rely on in the future.” Moreover, Cameron points out that we have international treaties that are focused on having uniform intellectual property laws across the world in addition to the Supreme Court ruling. “Swiss-type claims take known compounds and use them in novel ways. If these known elements are found to have a secondary medical use, the new medical use would generally be considered to lack the novelty required for obtaining a patent,” adds Cameron.

Intellectual property legal professional Peter Rouse, believes that the urge to own and control and derive revenues has to be tempered with a sensitivity to the sanctity of nature and respect for human well-being. “I have a profound disquiet with regard to the notion that human genes might become the equivalent of GM food. The US will think hard I hope before it attempts to justify annexation of human genes for commercial purposes,” says Rouse. “It must consider the social and international relationship consequences of extending what has been described as ‘Intellectual Feudalism’ in the name of furthering the interests of its domestic industries.”

By Idil Kan

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