Patent Tomfoolery with Breast Cancer

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Distribution of mutations in the BRCA1 gene. Image Credit: Larry Brody, NCHGR, NIH, Bethesda, MD, USA

Gemma (who is welcome to this neighborhood's bunnies, but will have to come get them herself) finally got around to watching The Corporation the other day, and an interesting notion emerges:

When a genetic laboratory identifies a genetic sequence, their scientists can patent it immediately. For example, the gene that creates a predisposition towards breast cancer has been patented.

"Why," asked Tyromaven as we watched, "can't someone sue them for having breast cancer?"

Why not, indeed.

I'm hard-pressed to identify any concrete good resulting from the utter mess that is the present American patent system, so I'm inclined to sympathize with this sort of notion. It's exceedingly tempting to render the thing broken in some way fundamentally unacceptable to the incumbent stakeholders, because then there'd at least be a chance of starting over and getting something sensible out the other side. Perhaps unfortunately then, patents don't work like this.

So far, I find 35 different patents on the BRCA1 gene alone, one of the first to be definitively linked to a modestly common cancer. You have to slog through the claims sections to figure out what they actually cover, though, an ordeal complicated by the fact that the patent lawyers who wrote them took some pains to ensure they cover as much as possible. But no company claims to actually own a gene, in a "this gene of yours made me sick" kind of way. Patents theoretically give an inventor the exclusive right to make or sell some novel thing. However, this concept has been stretched beyond all recognition of late, to the point where one can patent a mathematical expression (in the form of software) or an ad campaign (as a business method). Compared to this, patenting life is a quite straightforward concept.

Consider a frog. Suppose you discover that its slime cures the common cold. You can't patent the frog or its slime, but you can certainly patent the (newly invented) process of using it to cure a cold. Now you take the slime-gene and insert it into a cow so the milk does a body a whole new kind of good. New cow and new milk, so there's a patent so only you can make (by breeding or otherwise) the cattle or sell the drink. You'll probably also patent the gene itself, and what that'll mean is that only you can use the gene to create useful new organisms or otherwise cure the common cold.

Finally, imagine that through some odd mutation you wind up with a copy of slime-gene in your own cells, and it's gonna make you croak. You're not using it to cure anybody's anything, and you're sure not making any money off of it, so the necessary conditions to activate the patent don't exist. Moreover, you'll notice that if either was true, this would put you in legal jeopardy, not the patent holder. In court all you have to work with are plain old tort laws, which say that the patent holder didn't do squat to you. Thus you lack standing, and case dismissed.

Likewise, the patents on BRCA1 and friends are generally of a piece; they list off sequences, protein codings, or identified mutations, and claim the right to use those to screen for, identify, or treat cancer, which in practice means licensing someone to make drugs or test kits to do the same. In particular, it's a good bet that nobody's patented using a BRCA1 mutation to cause cancer. In general, patents by their nature only create rights for the patent holder. Quite by design, the existence of a patent only benefits you, the average non-patent-holder, by theoretically making the fruits of research more available to you than if they were locked away as a trade secret.

And after all, if patents created some kind of opportunity-cost liability for the patent holder, don't you think somebody would be suing the pharmaceutical companies over the millions of Africans who will die this year because they can't afford the patented drugs for treatable diseases?

1 Comment

What, you're not bringing me a bunny when you come in for Scav Hunt?

Damn, damn, damn. Somebody said something similar to me about patent law, so now that two people have said it I'll have to believe it. Dang. Somewhere, someday, I will find a loophole.

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This page contains a single entry by Milligan published on April 26, 2006 5:10 PM.

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