[Re-posted from the CGIAR Consortium News Blog]
By Robert Cook-Deegan
Now that the Supreme Court has ruled that merely isolating a DNA sequence does not make it eligible to patent, the question arises, “What will happen to the crucially important data accumulated by an overly broad monopoly?”
The answer to this question has implications for people who may have an inherited risk for breast and ovarian cancer and to the scientists who hope to use that data for life-saving decisions about cancer surgery.
A similar round up (pun intended) of coverage of this case.
There has been such an avalanche of coverage of the Association for Molecular Pathology v. Myriad Genetics hearing at the Supreme Court on the 15th April, that I thought it might be useful to collate some of the best and the rest in one handy list. Please let me know if I’ve missed anything (the list I have at the moment is mostly from the American and European press so it would be particularly interesting to hear how this was covered elsewhere).
This is an old paper that I gave at a workshop last year. I have been looking to work it up for publication and now I have finally got some time. It has been sitting at the bottom of a draw for a while, so I thought I should air it out. Any thoughts or comments welcomed.
In 1906 the Royal Horticultural Society hosted the Third International Conference on Hybridisation and Cross Breeding. The meeting is remembered now as a triumph of the Mendelian school, whose leader, William Bateson, used the occasion to put into public circulation his new term for the science, “genetics.” Less widely remembered is that the meeting also saw a session bringing together plant breeders to discuss another, related, matter: whether they could use the law to protect their intellectual property in the novel varieties that, they reckoned, would surely arise ever more abundantly thanks to the work of the Mendelians. So plant intellectual property was an explicit point of discussion among plant breeders in Britain from the early years of the twentieth century. And yet over the succeeding decades there would never emerge anything comparable to the US Plant Patent Act of 1930. Why not? This paper will offer a preliminary answer, emphasizing the extent to which different paths of agricultural development, and experiences of the Great War, shaped the political and moral contexts of plant breeding in each country.
Despite years of studying the law, history, economics and politics of patents, I have never quite got used to the idea of patenting a living thing. Are my doubts justified? One could argue that it is just a logical extension of existing patent norms. Machines have been patentable for a very long time; indeed, it is commonly assumed that patents are there to protect mechanical devices. If machines can be patented, then why can’t living things be, if they are modified to serve some practical end? If that is too much of a stretch chemicals arguably provide the right precedent. For centuries processes for extracting products from nature have been patentable as have the substances themselves. The case for patenting chemicals seems even more legitimate for chemicals synthesised in a laboratory, fully characterised, and not known to exist in nature even in crude impure form. Obviously, organisms are chemicals albeit with life cycles.
One could question the assumption that the chemical arts fit neatly within the conventional patent rules and regulations. But that is not my purpose here. Rather, my aim is to challenge the view that living organisms are inherently patentable. I will offer reasons why life forms cannot be classed as inventions, and then consider whether synthetic biology fatally overcomes my objection. This will involve my discussing prevalent modes of communication concerning the meaning of ‘life’ and seeing these modes for what they are: metaphor and analogy as opposed to pure objective truth.
In July 2010 I had the chance to participate in the IPBio symposium, Intellectual Property and the Biosciences, and the IPBio summer school held the next day. Over the course of the two days I had a great time. On one hand, the international symposium was led remarkably well by Mr Berris Charnley (University of Leeds) and Professor Gregory Radick (University of Leeds). Berris and Greg managed to organise an international event with the participation of some of the most important scholars, from both the EU and the US, currently working on issues around intellectual property rights and biotechnology. The symposium papers were very interesting especially as a wide range of subjects were analysed. Topics included stem cells, synthetic biology, plant variety protection and trademarks, to name just a few.