Patents Can Kill You
Michael Crichton has an Op-Ed piece in The New York Times today about the life-and-death cost that patients may pay thanks to the fact that the United States Government has issued patents for human genes
YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, itâ€™s only too real.
Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000.
Why? Because the holder of the gene patent can charge whatever he wants, and does. Couldnâ€™t somebody make a cheaper test? Sure, but the patent holder blocks any competitorâ€™s test. He owns the gene. Nobody else can test for it. In fact, you canâ€™t even donate your own breast cancer gene to another scientist without permission. The gene may exist in your body, but itâ€™s now private property.
Patents exist solely as a creation of the state and are authorized by Article I, Section 8 of the Constitution, which authorizes Congress to:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
When you think about it for awhile, human genes really don’t seem to fall into the category of things that have traditionally been patentable. Yes, identifying the gene for, say, eye color, is a “discovery”, but so is finding the planet Neptune and nobody would seriously suggest that Neptune is patentable. It’s a fact, not an application of scientific fact. Nonetheless, the Patent and Trademark Office has issued patents for genes and, as Crichton argues, it just doesn’t make sense:
Humans share mostly the same genes. The same genes are found in other animals as well. Our genetic makeup represents the common heritage of all life on earth. You canâ€™t patent snow, eagles or gravity, and you shouldnâ€™t be able to patent genes, either. Yet by now one-fifth of the genes in your body are privately owned.
If this were merely an academic argument over the proper application of the patent power, it would be one thing. Unfortunately, by allowing people — mostly pharmaceutical companies — to hold patents in human genes, the PTO is putting lives at risk:
For example, Canavan disease is an inherited disorder that affects children starting at 3 months; they cannot crawl or walk, they suffer seizures and eventually become paralyzed and die by adolescence. Formerly there was no test to tell parents if they were at risk. Families enduring the heartbreak of caring for these children engaged a researcher to identify the gene and produce a test. Canavan families around the world donated tissue and money to help this cause.
When the gene was identified in 1993, the families got the commitment of a New York hospital to offer a free test to anyone who wanted it. But the researcherâ€™s employer, Miami Childrenâ€™s Hospital Research Institute, patented the gene and refused to allow any health care provider to offer the test without paying a royalty
Crichton asks precisely the right question:
[W]hy should people or companies own a disease in the first place? They didnâ€™t invent it. Yet today, more than 20 human pathogens are privately owned, including haemophilus influenza and Hepatitis C. And weâ€™ve already mentioned that tests for the BRCA genes for breast cancer cost $3,000. Oh, one more thing: if you undergo the test, the company that owns the patent on the gene can keep your tissue and do research on it without asking your permission. Donâ€™t like it? Too bad.
Too bad for you, and too bad for freedom and innovation.