Nov 042010

The Department of Justice has just filed an amicus brief supporting the upholding of the US Federal District Court’s opinion that genes by themselves are not patentable.

This is huge.

The patenting of sequences of DNA has always been controversial. Opponents fall mainly in two camps. The first argues that there are those that say DNA, as a defining element of life, should be held by a private company as a patent. I don’t agree with this viewpoint. There is nothing extrinsically different about DNA from other materials that should differentiate it by this argument.

The second camp makes a much stronger argument, and is the reason cited by the DOJ’s amicus brief, and is also the reason I am strongly opposed to DNA sequence patents. Because DNA in itself is a mere product of nature, and not in itself an invention or process or design, it is not patentable. The DOJ’s brief goes further to say that diagnostic tests using the discovered sequences are not patentable, since this is nothing more than scientific conclusion. It’s like patenting the fact that uranium decays into radium. That fact in itself should not be patentable, but if some party describes a process to detect the radium as part of a system to detect uranium decay, then that process would be patentable, but wouldn’t preclude other parties from developing potentially competing technologies based on the same scientific fact.

This NPR article cites a GW Law professor’s contention that we should extend these patents, and companies holding these patents will license out the technologies, much like computer component manufacturers license out theirs. However, this is flawed reasoning, since (1) each proprietary computer component, interface, or protocol is a very obvious invention or process, and, (2) for the key parts of the computer, the patents are placed on architectures leveraging the core materials and processes, which are shared by everyone.

My belief is that patents are critical in biotech, an industry where R&D investment for a single product can easily balloon to hundreds of million, or even billions, of dollars, and take over a decade. However, you just shouldn’t be able to patent an identified gene that appears in millions or billions of people worldwide. It’s not an invention. It’s not a process. It’s not patentable.

  2 Responses to “Patenting DNA”

  1. What’s the difference between the first and the second arguments against DNA patents? I don’t really understand the difference between justifying “unpatentability” on the basis that DNA is a defining element of life and doing so on the basis that DNA is a product of nature.

    • Concerning the first, there are many out there that believe anything living should not be patentable–there’s a whole range of beliefs here, but there’s a good subgroup here that understand DNA to be the code for life, and therefore, the DNA molecule, in any form, should not be patentable. With the second, it doesn’t really matter that DNA is the code for life. It hinges on the fact that DNA is discovered, and no improvement has been made on it that should render it patentable as a design, invention, or process. It’s like the similarly sketchy practice of patenting large primes. You can’t just patent an abstract concept–you have to patent a (potential) commercial application of that concept.

      So, the first is an argument based on the unpatentability of life, and the second, based on the lack of a patentable improvement on what’s currently just a concept.

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