Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Governments…formed simply by the consent or agreement of the strongest part…will act in concert in subjecting the weaker party to their dominion. And the despotism, and tyranny, and injustice of these governments consist in that very fact.”     Lysander Spooner

February 13, 2007

Patents Can Kill You

by Doug Mataconis

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, it’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. Couldn’t somebody make a cheaper test? Sure, but the patent holder blocks any competitor’s test. He owns the gene. Nobody else can test for it. In fact, you can’t even donate your own breast cancer gene to another scientist without permission. The gene may exist in your body, but it’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 can’t patent snow, eagles or gravity, and you shouldn’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 researcher’s employer, Miami Children’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 didn’t invent it. Yet today, more than 20 human pathogens are privately owned, including haemophilus influenza and Hepatitis C. And we’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. Don’t like it? Too bad.

Too bad for you, and too bad for freedom and innovation.

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3 Comments

  1. I did not realize the debate had ended. What is the governments reasoning for issuing patents on genes? Were the people in charge scientific illiterates?

    Comment by VRB — February 13, 2007 @ 4:59 pm
  2. yeah—um can somone give a specific example of innovation being retarded due to gene patents? No? This issue is 2001 stale and Mikey C. is misinformed:

    “And we’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. Don’t like it? Too bad. ”

    I guess any asshole can write any lie and get away with it! He must not know about CAP, CLIA and NYS lab certifications and sample destruction requirements. Ignorance abounds in MC’s fantasy world. And tissue? What tissue? lazy, lazy, lazy Mikey.

    Mikey continues to spew misinformation. In his reckless article from Parade magazine, another half-baked lie was exposed. His source said ‘women go to France to get access to BRCA gene testing’. ummmmm, that’s about as accurate as saying Americans are queueing up to wait for Canadian mammography because they are not covered in the US. Who would travel to Europe and pay out of pocket for gene testing? American men and women who are candidates for testing are already getting ‘full sequencing’ with additional panels to detect rare mutations. The typical out of pocket costs for these tests are below $300. The only American getting BRCA testing in France is either rich, misinformed or anti-capitalist.

    I’m finally convinced everything written is semi-BS. Therefore, one should assume a washed-up writer with a half-cocked political agenda is the most dangerous animal in America.

    Sereiously—is MC really this lazy? Would you want your writing legacy hinging on this bizzare political stance? Can someone please get this man a fact checker!

    Comment by orions55 — February 14, 2007 @ 4:50 am
  3. Crichton’s knowledge of patent law is spotty, but he’s on the right side of the debate. For a more detailed discussion, please see my blog.

    Comment by Andrew Chin — February 15, 2007 @ 8:21 pm

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