Comments on: Gene patents under the microscope http://www.australianpatentlaw.com/2009/05/gene-patents-under-the-microscope/ Intellectual Property News from Australia and New Zealand, covering copyright, designs, patents and trademarks Wed, 08 Sep 2010 00:09:17 +0000 http://wordpress.org/?v=2.6.3 By: Steven Borovec PhD, Partner http://www.australianpatentlaw.com/2009/05/gene-patents-under-the-microscope/#comment-641 Steven Borovec PhD, Partner Wed, 06 May 2009 00:11:54 +0000 http://www.australianpatentlaw.com/?p=498#comment-641 While this story attempted to inject some balance into this long running debate, the “pro-patenting” viewpoint did not come across with sufficient clarity. Health care providers and the public seem to have little difficulty accepting that they must pay a royalty to the patentee of a pharmaceutical substance or a medical device, but many draw the line at any treatment or diagnostic test having a genetic basis. It appears that the basis for this disparity lies in the curious thesis of “my body contains genes, and some corporate should not be able to own them”. This story attempted to make the point that the patenting process does not interfere with an individual’s ownership of their own genes, but perhaps did not go far enough. Typically, gene patents protect only a “substantially isolated or purified” form of a gene. This means that in order to infringe a gene patent, you must physically remove the gene from the body and purify it away from the millions of other biomolecules that co-exist in the body. Like most ordinary folk, I have no plans for converting my kitchen into a laboratory for such a purpose. Alternatively, gene patents are directed to probes capable of binding to a particular gene sequence. In order to infringe this type of patent it is necessary to synthesize a nucleic acid probe against the subject gene. Again, I would prefer to keep my kitchen for cooking spaghetti. In short, the ordinary person has nothing to worry about. It is true that gene patents can be problematic in certain circumstances. For example, a commercial pathology laboratory seeking to identify whether a person has a breast cancer gene may need to use a patented probe. Before they use the probe they must seek a license from the patentee and generally pay a license fee. The fee is reimbursement for the company that identified the involvement of the mutant gene in breast cancer. Medical research is risky and expensive, and companies simply will not trouble themselves to embark on any research without the promise of financial reward. Importantly, this situation is no different to a patient buying an antihypertensive drug, or indeed a Dyson vacuum cleaner. The patentee is simply seeking reward for their research and development activities. In the end, it is of course the consumer who pays for the commodity. But hey, there’s nothing new about that. In summary, it is incorrect to single out gene patents for special scrutiny. For any attack to be valid, it must be made against the patenting system a whole. While this story attempted to inject some balance into this long running debate, the “pro-patenting” viewpoint did not come across with sufficient clarity.

Health care providers and the public seem to have little difficulty accepting that they must pay a royalty to the patentee of a pharmaceutical substance or a medical device, but many draw the line at any treatment or diagnostic test having a genetic basis. It appears that the basis for this disparity lies in the curious thesis of “my body contains genes, and some corporate should not be able to own them”. This story attempted to make the point that the patenting process does not interfere with an individual’s ownership of their own genes, but perhaps did not go far enough.

Typically, gene patents protect only a “substantially isolated or purified” form of a gene. This means that in order to infringe a gene patent, you must physically remove the gene from the body and purify it away from the millions of other biomolecules that co-exist in the body. Like most ordinary folk, I have no plans for converting my kitchen into a laboratory for such a purpose.

Alternatively, gene patents are directed to probes capable of binding to a particular gene sequence. In order to infringe this type of patent it is necessary to synthesize a nucleic acid probe against the subject gene. Again, I would prefer to keep my kitchen for cooking spaghetti.

In short, the ordinary person has nothing to worry about.

It is true that gene patents can be problematic in certain circumstances. For example, a commercial pathology laboratory seeking to identify whether a person has a breast cancer gene may need to use a patented probe. Before they use the probe they must seek a license from the patentee and generally pay a license fee. The fee is reimbursement for the company that identified the involvement of the mutant gene in breast cancer. Medical research is risky and expensive, and companies simply will not trouble themselves to embark on any research without the promise of financial reward. Importantly, this situation is no different to a patient buying an antihypertensive drug, or indeed a Dyson vacuum cleaner. The patentee is simply seeking reward for their research and development activities. In the end, it is of course the consumer who pays for the commodity. But hey, there’s nothing new about that.

In summary, it is incorrect to single out gene patents for special scrutiny. For any attack to be valid, it must be made against the patenting system a whole.

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