06 July 2010

The "Morality" of Gene Patents

Patentology notes this contribution in today's Melbourne Age newspaper to the "gene patent" debate, by IP lawyer Karen Abidi.

Ms Abidi brings some balance to the debate surrounding genetic patents when she points out that a genetic patent does not grant anyone "ownership" of any person's genes.  However, she places herself firmly on one side of the debate in stating that isolated genes are not inventions, but discoveries, and "there is a moral case against patenting them."

We suspect that colloquial use of the term "invention", evoking brilliant individuals of insight and ingenuity, is not always consistent with the meaning of the term within patent law.  Ms Abidi calls the recent New York ruling, in which cancer gene patents were found invalid as "products of nature", a "good decision".  Yet US patent legislation expressly provides that things we might ordinarily regard as "discoveries" can, in appropriate circumstances, qualify as patentable inventions (35 USC 101 - "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title").

As we have previously reported, the District Court decision is now under appeal.

For a "discovery" to be patentable, the law requires that there be a useful application of the discovery, and that the discovery or use was not obvious beforehand.  "Obviousness" may not be exactly opposite to the colloquial concept of "invention".  These concepts of usefulness and obviousness are not new, or limited to genes.  Many chemicals, including pharmaceuticals, turn out to be naturally occurring, and yet in most cases the corresponding patents are relatively uncontroversial.

The moral dimension is not unimportant, but is difficult to judge without all the facts. Moral questions exist in relation to genetic technology more generally, not in genes being "discovered" rather than "invented", which is nothing new to patent law.

An Australian Senate Committee is currently conducting an enquiry into gene patents (see previous reports here and here).  Having extended its time to report, we hope that the Committee will reach a balanced view clarifying the moral issues.

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