Genetics

Should Human Genes be Patented



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The biotechnology revolution presents a growing crisis to the existing architecture of patent and copyright structures in Western society. The use of biotechnology has increased exponentially since humans have come to understand the structure of DNA and how to manipulate it. This has brought about a new era in society one in which humankind can control the basic blueprint of life. A number of discussions and debates have arisen from advances in biotechnology, one being the patenting and ownership of genes. Corporations file patents on gene fragments at an unimaginable rate, thereby spurring research into genes and their functions. It is naive to assume that innovative and creative research will continue to blossom in an industry becoming increasingly driven towards producing profits. Recently, the topic of gene-patenting has evolved into more than just an issue of concern amongst scientists and researchers religious and moral implications have arisen. Those opposed to gene patenting citing religious reasons argue that genetic engineering is equivalent to playing God. As well, controversy has risen over whether genetic material satisfies the basic criteria for patenting under U.S. and European law. As indicated in the previously expounded arguments, patent laws should not be extended to genes identified by the Human Genome Project.
Extending patent laws to genes covered by the Human Genome Project may distort incentives for research to financial incentives, thereby leading to a poorer quality of work, a decrease in collaboration within the scientific community, and the creation of a barrier to innovation. Researchers who previously were content with the non-pecuniary gains of paper publication may be forced to seek patents in order to be successful. It follows that the increasing pressure on a scientist to produce patentable work may shift the research focus to finding patentable subject matter rather than something that is genuinely beneficial. This focus on finding patentable subject matter will also increase competitiveness among scientists, thereby reducing collaboration and breaking down the Cartesian scientific method. While conducting research, it is unreasonable to argue that a scientist should, upon his or her own initiative, determine if the genetic material he or she is working with is the intellectual property of another individual or organisation due to the sheer time and expense required to conduct such an investigation. Even if scientists could "invent around" previously protected innovation conduct research without the use of patented gene sequences the transaction costs involved in the process of identification would limit the amount of research that could be conducted . Furthermore, scientists may be unable to invent around patents dealing with the genetic basis of diseases as they occur in nature. Thus, patenting can be an impediment to the progress of science.
Those religiously and morally opposed to gene patenting argue that life cannot be defined as an invention to be profited from by scientists and corporations since it is freely given as a gift of God, and that genetic information is the "common heritage of mankind" and therefore cannot be commodified. In May 1995, a coalition of over 200 religious leaders including more than 100 Catholic bishops, titular heads of nearly every Protestant denomination, and Muslim, Hindu, Jewish, and Buddhist leaders announced their opposition to the granting of patents on animal and human genes, arguing that the patenting of life marked a serious challenge to the notion of God's creation in history. Religious dogma asserts that some things should be outside of the property system : babies, votes, kidneys, and DNA. The consequences of turning the human genome over to private property rights will be dreadful, as market logic invades areas which should be kept farthest away from the market. Proponents of this argument conjure up a dystopian future in which transgenic, subhuman creatures are traded as chattel. Extending this argument, patenting DNA commodifies nature. Philosophers ask what damaged view of the self and what warped relationship between human beings and the environment would result from a world in which our genetic code is made both alienable and alien at the same time. It follows that the genome should not and, perhaps in the same sense, cannot be owned.
Patent laws should not be extended to genes identified by the Human Genome Project since such innovation does not meet the requisite conditions to justify a patent. To be patentable under U.S. or European law, an innovation must be novel, non-obvious, and have utility. Genetic information a product of nature is merely a discovery, not an invention, and therefore does not meet the novelty standard. The innovation must be "non-obvious to a person trained in the relevant prior art." The standard methods of genetic sequencing are such that each step in the process of cell isolation, purification, and sequencing may be considered as obvious to a scientist trained in gene isolation techniques. Thus, genetic information does not meet the non-obviousness standard. Finally, the innovation must have "some specific, definite, practical use". Researchers should not be permitted to patent DNA sequences on whimsical or speculative claims pertaining to usefulness. Some recent genetic patents have been shotgun claims over large sequences without clear knowledge as to what function these sequences have. Just as an astronomer cannot assert property rights over a newly discovered planet, a molecular biologist should not be able to assert property rights over a gene sequence. Without a specific degree of novel utility, inventions which comprise gene sequences are mere discoveries, and therefore must not be considered as valid patentable subject-matter.
Patent laws should not be extended to material covered by the Human Genome Project. The introduction of legal stipulations to the domain of molecular biology may hinder research and subsequent intellectual output. Religious and ethical objections to biopatenting may also arise. In the case of patents on DNA, controversy has risen over whether genetic material can be considered as patentable subject matter. The concept of biopatenting may itself provide the economic, ethical, and legal warrant for the creative engineering of future generations.

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