Gene Patents

In school mannequins and plastic models served as representations of the Body and all of its parts. There were a lot of things we didn't question about this plastic to flesh association (or disassociation). Perhaps the most important unasked question was whether or not this was an appropriate congruity. Not because a plastic model can't be a stand-in for the real thing, but because such a surrogate might make us forget eventually that there is a real thing. This is the same argument posed by concerned parents and citizens who feel that TV violence desensitizes teens to the real thing.

The extent of the impact that such surrogacy has on our perception of the body is evident in our lack of empathy for it and the widening perception of the body as a mere commodity. In a very short period, the legal status of the body has regressed from that of an inalienable subject to one that is subject to patents. This phenomenon of patenting life and the body coincides with the reductionist perception of the body as a machine. Allan Petersen states in his essay The New Genetics, Health and "The Public", "By the 1940s and 1950s the most important threats to health were seen to lie in 'the environment' just outside the body. The body was viewed as a machine, comprising parts that were vulnerable to breakdown, particularly through attack by disease."

Disease management has proven to be lucrative for the pharmaceutical industry. In the old days, drugs that assuaged the discomforting symptoms of disease or, in rare cases, eliminated the disease altogether, were patented by pharmaceutical companies who then reeled in billions of dollars supplying these drugs to the public. That model, while still used today, is waning in the face of genetic research. Money is now shifting towards discovering genetic predispositions to disease and patenting these discoveries.

The full consequences of these patents have yet to be fully appreciated by the public. Most likely this is because the public scarcely understands or knows what exactly is being patented. Raw products of nature are not patentable. However, discoveries and the isolation of strings of DNA can be patented. The molecular diagnostics company Myriad Genetics, by identifying and isolating a tumor suppressor gene, became the patent holders of it. Their ownership of the BRCA 1 and 2 genes restricts women with breast and ovarian cancer to having the $3000 diagnostics done by only Myriad Genetics.

Close to 90% of the human genome has now been patented by various biomedical researchers and biopharmaceutical companies and universities.

Chakrabarty, in his essay for the book "Who Owns Life?" remembers the patent attorney for GE, Leo I. Malossi, who "could not understand why an invention... could not be patented simply because it was living. To him, a living microorganism is nothing but a composition of matter." Mallosi's vapid view of life as little more than matter is a reflection of the plastic models that mitigate our understanding of what life really is. Richard C. Strohman PhD, in his often cited essay "Genetic Determinism as a failing paradigm in biology and medicine" refutes the over-popularized and over-simplified depiction of cells as work engines: "The Cell", he writes, "is beginning to look more like a complex adaptive system rather than a factor floor of robotic gene machines." Because the complexity of the cell is inadequately explained it is all too easy for people like Malossi to reduce it the cell to a protein factory. Because life derives from these proteins, to patent a gene is to patent life. The Supreme Court, when pronouncing its rule on the Chakrabarty case, decided that the real issue at hand was not the distinction between living and non living things, but rather the distinction between inventions of nature (living or not) and inventions of man. Chakrabarty's bacterium was ruled a man-made invention and the patent was grated.

The timing on this ruling couldn't have been better for biotechs and universities who rushed after patents on plants, animals and even human cells and genes. Four years after the Chakrabarty ruling, John Moore, a cured hairy-cell leukemia patient whose spleen was removed from hematologist-oncologist David W. Golde, discovered later that his surgeon patented his cells as "Unique T-Lymphocyte Line and the Products Derived Therefrom." Moore filed a lawsuit and once again, the ping-pong legal process ensued, ending in favor of Golde and UCLA. The ruling was that Moore did not own his own cells nor should he benefit financially from them.

Four years after that the Moore ruling and eight years after the Chakrabarty, the Patent and Trademark Office in the United States broadened the scope of what could be patented from micro-organisms to higher life forms: the "Harvard Mouse", which had been genetically engineered to be susceptible to cancer, became the life-property of Harvard University.

Stem Cell research may be what brings the issue of patents on the human body closer to home for the general public. Because stem cells have the potential to develop into many different types of tissues and organs, we could be staring into a future where body parts, especially when those parts are enhanced by novel recombinant DNA techniques, will be the protected property of commercial entities. Techniques for deriving heart, nerve, pancreas, bone, liver and blood cells from stem cells are already patent protected

How to balance public benefit with proprietary reward is part of the challenge of any jurisdiction on the subject. Patent owners rightly want to see financial gain from their discoveries, however, as many women have found with Myriad Genetics, the patenting of "techniques" and diagnostic technologies puts medical treatment well beyond the reach of many people.

Not to mention that the idea of nature being "owned" - even at a microscopic level - seems both dumb and dangerous to many people. Dumb, because recombinant DNA seems to be less a human invention and more or less a human intervention of natural processes that already existed. Dangerous, because, quite frankly, we've been up this hellish road before. Human beings have legally owned other human beings in the past. While ownership of life is a thing of the past, the legalese that defines such "ownership" has been revisited and revised. The basic right to life may be protected from slave owners; but the basic processes of life, well, those are now owned and protected by patent holders.

The doors for owning life began to open in 1973 when Ananda Chakrabarty and General Electric applied for a patent on the bacterium Pseudomonas which consumed crude-oil much better than any other bacterial strains that came before it. The patent suffered through a ping-pong journey of rejection and appeals before landing in the lap of the Supreme Court which approved the application in 1980. The floodgates were open; but not so much because of Chakrabarty. Patents on Mother Nature, particularly plant life, had bounced around in the same ping-pong rhythms since the late 1800s. The truth is, our legal system has never really known how to address the conflict between a researchers right to protect his inventions or discoveries and Mother Nature's diminishing legal status as self-invented and self-discovered.

The End?