Speech by Michael Crichton to Congressional Aides

WHAT'S WRONG WITH PATENTING GENES?

(from a speech by Michael Crichton to Congressional Aides, September 2006 )

Gene patents might have looked reasonable 20 years ago, but the field has changed since in ways nobody could have predicted. And we have plenty of evidence today that gene patents are bad practice, harmful, and dangerous. Gene patenting breaks all sorts of long-standing rules about what is protectable, and it does so with no countervailing benefit.

1. Genes are facts of nature. Like gravity, sunlight, leaves on trees, and wind, genes exist in the natural world. They can't be owned. You can own a test for a gene, or a drug that affects a gene, but not the gene itself. You can own a treatment for a disease, but not the disease itself. Gene patents break that rule.

Of course lawyers can argue about what's a fact of nature, and some are paid to do that. But here's a simple test. If something exists before homo sapiens arrived, it's a fact of nature. If I can have a child and it's in that child's body at birth, it's a fact of nature. Let's cut the sophistry and legalisms. Genes are our common heritage. Most of them are millions of years old. They are not human inventions and cannot be owned.

2. Gene patents are imprecise and debatable. We now know that gene sequences may perform different functions at different times. Or different parts of the sequence may be activated at different times. So what is being patented? Or has been patented? Vague patents are bad patents, because they discourage others from working in the area. Gene patents discourage research. The recent NAS study of gene patents found that, too.

3. A gene patent is an undeserved monopoly. Here again, trouble arises because the patent is not for an invention, but a fact of nature. Ordinarily patent protection enables me to protect my invention, but encourages others to make their own versions. My iPod doesn't prevent you from making your mp3 player, too. My patented mousetrap is wood, but your titanium mousetrap is allowed.

This is not what happens in gene patents. The patent consists of pure information already existing in nature. Because there has been no invention, no one can innovate any other use of the patent without violating the patent itself, so further innovation is closed. This makes the patent an overbroad monopoly, and they're bad public policy. That alone should be the end of the argument.

4. We have ample evidence they're bad policy: gene patents hurt patient care and suppress research. When Myriad patented two breast cancer genes, they charged nearly three thousand dollars for the test, even though the cost of creating a gene test is nothing like the cost to develop a drug. Not surprisingly the European patent office revoked that patent. The Canadian government announced it would test without paying for the patent. Some years ago, the owner of the gene for Canavan disease refused to make the test widely available, even though famililes who had suffered with the disease had contributed and cooperated to get the gene identified. Too bad.

It's all a mess. And it's a dangerous mess. When you hear that SARS (severe acute respiratory syndrome) research was inhibited by concerns about who owned the genome, with three simultaneous patent claims going on...so research wasn't vigorous...that's scary. We're talking about a contagious disease with a 10% death rate that spread to two dozen countries around the world. And scientists wouldn't do research because of patent fears? We have to be out of your minds to allow this to continue.

At the moment, Hepatitis C, HIV, hemophilus influenza, various diabetes genes, are all owned by somebody. They shouldn't be. Nobody should own a disease. The idea is so ridiculous I can hardly bring myself to discuss it.

Finally, you should end gene patents because there is no other solution to the public policy mess they have created. Back in 2000, the AMA said that patent licenses should be inexpensive, so that research and patient care is not affected. That's a nice idea, but how do you ensure it happens? What's the definition of inexpensive? Who will determine that? Who will keep track? A new bureaucracy? A new wave of patent lawsuits?

This is all nonsense. Stop gene patents and move on. There will be cries that business will end, and companies will go bankrupt. But in reality there will not be serious interference with business or profits or research. On the contrary, my prediction is that ending gene patents will be phenomenally liberating and will usher in a golden age of biogenetic therapy.



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