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The first gene for breast cancer show how nasty it can get. Years of patient research by several groups got closer and closer to locating the gene. Then at the last minute, a newly set up US company hustled in, did the last few steps and claimed that whole gold field as their own private property. The company then did the same thing with the second gene, hours before UK Sanger Research Centre were about to publish the information on the Internet for the benefit of humankind. The trumpets for the human genome project should not drown out its ugly side when it comes to morals.
Unlike the wild west, it's quite legal, because that's the way we've allowed patent laws to be set up. Once upon a time, patent law was mostly about objects, chemicals and processes. You couldn't normally patent "products of nature", like genes or animals. You couldn't patent a mere discovery. There must be some non-obvious "inventive step", and a specific practical use. This all changed once biotechnology reached the level of genes. Instead of seeing genes as part of the global commons, governments, companies and patent lawyers saw gold "in them thar hills". In 1980 the US Supreme Court ruled that a micro-organism could be patented, arguably only a small step. Their judgement that "anything under the sun that is made by man" was patentable, however, was the giant leap that set the trend to allow patents on anything that moves. And that is where the problem lies.
Most the world's ethical systems make a distinction between how we treat things that are alive and things that are not. Patenting living organisms or genes, however, lumps them into the same category as mere mechanical objects or chemicals. Instead of regarding life forms as "products of nature" they are classed as "products of manufacture". That symbolic association puts the priority of function and utility over all other criteria. Treating agriculture as mere industrial production eventually overrides animal welfare or the environment. The ratcheting effect of patenting as much as possible of the human genome shows that medicine is not immune either.
Back then, public opinion about biotechnology was of little account. A whip was put on Labour MEPs to vote to make patenting human gene sequences a part of EU legislation. "No patents no cures" was the slogan of lobbyists for the biotechnology industry. You wouldn't want to be seen as the MEP who voted against genetic cures now, would you? Indeed, initially many genetic disease patients' groups supported the gene patenting argument. Many then realised that the vision of open, humanitarian genetic research wasn't quite so rosy. Patents are also ways to protect multi-national monopolies and hold back competitors. They could also mean more expensive therapies.
Most ordinary people outside the patenting and biotechnology professions seem to think we should not patent genes. They are simply discoveries, and part of our own make up. They are not something to be the intellectual property of an individual or a corporation. Not so, says the EU Directive. You can patent a gene because in order to identify it, you did intellectual work and copied it. This is a remarkable intellectual sleight of hand. Copying a gene does not magically turn it into an invention. It's a routine biochemical procedure, and the all important genetic information is still the same. But the EU, the European Patent Office and the biotechnology industry needed a legal excuse to compete with the American system which did allow gene patenting.
Since then widespread public concern about who controls genetic discoveries has found a voice. Messrs Blair and Clinton reacted to it, but the real question is whether they will put any force behind their statement? Some careful steering is required if the Human Genome Project is to be used primarily for humanity, and not as a gold rush free-for-all.
Firstly, laws requires interpretation. How wide is a gene patent? Patent Offices have power to decide. A European Churches bioethics working group argue that it is wrong to patent a gene in order to control all possible uses of it. You should be able to patent only the specified use you have worked out. The patent should not deter someone else from developing another marketable use for the gene.
Secondly, how shall society handle the monopolies it grants? Medical genetics still commands a good deal of public goodwill, but it will not continue to do so if it abuses the monopoly which patenting can give. A simple patent system to afford protection to an inventor from commercial predators has long become a primary tool in the competitive ambitions of powerful companies. Having too much power in too few hands is good for neither research, patients or society. Being granted a patent in the life sciences should bring with it a social responsibility to be far more answerable to society over how those genes are used. That is not written into any patent law. Here is where Governments and people can make a difference, to see that the benefits of the human genome map go where they are really needed, and not primarily into private investor's pockets.
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