Who owns your genes?

Friday, August 15, 2008
by Diane Boudreau

Imagine you go to the hospital to treat an illness. While you are there, you mention to your doctor that you have never caught Disease X, even though you have been exposed to it many times. Your doctor is curious. He tells you he needs to run some tests on your illness. In reality, he wants to study your genes. He believes that the special qualities that defend your body against Disease X are located in your genes.

Without your knowledge or permission, he tests your genes and figures out which ones protect you. The doctor then applies for a patent on your genetic information. He now owns the information in your body! You are not allowed to share or sell this information without his permission.

Think it could never happen? It did. The angry patient took his doctor and hospital to court. But the court decided in favor of the hospital. The case—Moore versus Regents of the University of California—set an important precedent for gene patenting.

Private property--no trespassingWhen science and law collide
Until very recently, people had no way to decode information in their genes. Today we have the ability to map out our genetic blueprints. These kinds of scientific advances present tricky new problems in law and ethics that we never had to think about before. There is a real need for lawyers, judges, and lawmakers who understand both law and science to help guide us through these legal minefields.

“The practice of law bumps into science and technology in ways that it previously did not,” says Andrew “Sandy” Askland, director of the Center for the Study of Law, Science and Technology at Arizona State University.

The center was created to help the legal system deal with the challenges brought on by new scientific discoveries and advances in technology. The center supports research, teaching, and conferences on the topics of law, science, and technology. It helps prepare the law professionals of today and tomorrow to cope with these new problems.

The ability to decode and even alter the genomes of living things has brought up a slew of new legal problems. Gene patenting is one of these issues. How have we gotten to a point where one person can patent someone else’s genes?

“The patent system is designed to encourage inventors to reveal the nature of their inventions to the public,” says Askland. “The patent gives the inventor protection.”

A patent gives a person the exclusive right to make, use, and sell an invention for a limited time. Usually a patent is good for 20 years. After that time, other people may make and sell the invention, too.

Patents play an important role in encouraging new inventions, says Askland. Developing new products—such as allergy pills or cell phones— can cost millions of dollars. No one wants to spend that much money and effort just to have other people steal the idea and sell it themselves.

Think of it this way—if you do all the work of writing a report, then you should get an “A.” If another student copied your paper over your shoulder, you wouldn’t want that person to get the “A” instead.

Not everything can be patented. In order to get a patent, inventors must show that their products are new, useful, and non-obvious. In addition, people cannot patent naturally occurring things. “If I discover a bird, I might be allowed to name it, but I can’t patent it,” says Askland.

But wait—genes are naturally occurring things. So how can people patent them?

Patenting life
To understand this, we need to look back at patent history. In the 1930s, some farmers made hybrid plants by grafting together two different species. The patent office refused to patent these new plants because they were natural objects. However, the farming industry persuaded lawmakers to change the patent laws to protect their hybrids. Their reason was that plants do not naturally graft themselves together. The new breeds never would have existed without human intervention.

In 1980, the Supreme Court looked at another important patent case. A biologist developed a bacterium that would eat up oil spills. His patent application was rejected because he merely combined two existing bacteria to make a new one. The Supreme Court, however, reversed that decision. They said that the new bacterium was a product of the scientist’s skills and ingenuity, and so it could be patented.

Hybrid plants and hybrid bacteria can’t be created without human help. But no one created your genes in a lab. Even so, they are patentable. Although your genes occur naturally, you don’t know what specific information they contain. And you can’t use that information to help someone else. You would need expensive lab equipment to decode the information and put it to use. People patent genes based on the fact that they have decoded the information and therefore should have the right to use it to make a profit.

Currently, it is legal to patent genes, but not everyone agrees that it should be. “A lot of people have said it was a mistake to allow patenting of genetic information,” says Askland.

In fact, genetic patenting could have the opposite effect of what patent law intends. It could discourage innovation instead of encouraging it. Many undeveloped countries are wary of Americans studying their native resources and patenting their natural remedies. Brazil now forbids scientists to study their plants and animals without the government’s permission.

“They don’t want U.S. researchers to take this information back to the States and profit on it without sharing that information with Brazil,” says Askland.

Gene patenting is just one of many biotechnology questions that lawyers, lawmakers, and the courts have to grapple with today. There are many others:

Are genetically modified foods safe to eat? Are they environmentally sound? Should insurance companies have access to genetic test results? Should we allow human cloning, and if so, should it be regulated?

These are questions that people never had to think about until very recently. But they are questions that need to be answered.