Genes, Patents and Polemic

By Associate Professor David Brennan

Leslie Cannold and Luigi Palombi in their piece “Patent rubbish for companies to own genes” (published by Fairfax Media on 27 April 2010) attack the grant of gene patents in strong terms; the patents are said to ‘put lives at risk’. It is, however, contestable whether many of their claims have a sound basis. The authors’ stand-point on patents is largely backward-looking. They ask why people, described as ‘victims’, should be deprived of a beneficial technology because of an inability to pay a patent licence fee. In so asking they gloss over that the justification for patents unambiguously rests at a point in time prior to the existence of such technology. Patents are granted to provide a reason for private investment to flow into research and development to address practical problems which have no obvious solution. People can use their inventive abilities to try to improve overall welfare. Resultant solutions might be a more energy-efficient solar cell, or a cure for Alzheimer’s disease, or any other form of technological progress. Because investment in R&D is commercially risky, it will only be undertaken if the promise of a commercial return exists for success. Hence in the prospectus of a typical Australian biotech start-up company, a patent portfolio will feature as the company’s core future asset.

While patent rights in important technologies do impose costs on society, if those technologies were not developed, society is the net loser. Imposing the restriction of patent rights so as to spark improved technologies has long been considered a price worth paying, rather than society going without those technologies altogether. The cost concerns that the authors highlight pertain to the inability of some users to access patented technologies. Those legitimate concerns can be, and have been, addressed by a mix of government subsidies to users, laws compelling patentees to grant licences on reasonable terms, and legal freedoms for experimental use.   

Moreover, in striking a cost-benefit balance, patent law has consistently rejected broad rights on discoveries pertaining to natural phenomena. Such discoveries are not in themselves practical solutions. Only if a discovery can be put to some practical use can there be an invention fit for patent protection, and then the protection is usually confined to that solution. Therefore, Amgen’s discovery relating to the human gene encoding for erythropoietin (EPO) – a natural protein that promotes the production of red blood cells and thereby treats anaemia – gave Amgen no rights whatsoever in the EPO gene naturally present in a person. Amgen did not ‘own’ your EPO gene. Rather what patent law essentially gave to Amgen were rights related to the manufacture of synthetic EPO to be used as a treatment for anaemia. It was a treatment not previously available to sufferers. Likewise, the controversial Myriad patents give Myriad no ownership of any gene occurring naturally in a person’s body. What patent law can validly confer upon Myriad are rights related to testing for a genetic predisposition to breast or ovarian cancer, being a diagnostic not previously available to women.

The authors’ focus on human gene technology begs questions of coherence. It implies that R&D to develop a cure for Alzheimer’s should be not given patent incentives if that research (like Amgen’s) is directed to genetically engineering a treatment from a human gene. But what if the research is directed to genetically engineering a treatment from a fish gene? It is unclear whether the authors’ view is that patent incentives should be denied for both types of research, or simply the former. But even if the suggested denial is only for human gene derived cures, the interests of society are not well-served by curtailing patent incentives for private R&D into the pursuit of any Alzheimer’s cure. If there is to be a patent system, it seems absurd that incentives will be extended for (say) an improved clothes peg, but not for a human gene derived Alzheimer’s cure. There is a Senate Committee currently considering the submissions from those who (like the authors) argue that patent incentives should be curtailed for private endeavours to develop such a cure. It is appropriate for the Committee to most carefully consider those submissions, because it must work out what those submissions are really saying. Are they saying that we as a society cannot have that cure? Or that we should not have that cure? Or that we will get that cure anyway by faster and less costly means?

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