Patently wrong ***updated***

Who owns you?

When should a company be able to own a patent over something which exists naturally? Never.

This week the ABC’s flagship investigative journalism program 4 Corners took at look at gene patents. For most Australian’s this issue isn’t even on their radar – but it should be.

There’s a landmark legal action in Australia at the moment challenging a patent over breast cancer gene BRCA1. It comes not far behind a similar action in the US which found no patent should have been granted in that situation.

The reason for the court action is to remove patents from human genes. And rightly so.

A patent means protected ownership for a defined period of time and includes exclusive use and ability to prohibit use or development by others.

You might be surprised to learn that around 20% of human genes are patented in Australia, so this case will be watched closely by all sides and around the world. It will have significant impacts either way.

The argument from the biotechnology companies is that a lack of patent protection over the genes will limit their enthusiasm for research and innovation. They say that if they can’t patent genes – not just human, but plant genes and most other biological material – they won’t be able to cash in on the commercial windfall of any product they develop in relation to that biological material.

I’m a big supporter of enterprise, investment and innovation but I struggle to see why the companies are fighting so hard here. No one is seeking to stop them patenting and protecting their research product – in other words any “tests” or products etc derived from their work around the genes or other biological material.

If they’ve invented a treatment or an identification test or whatever then they deserve the benefits from that and they also deserve the commercial protection a patent provides so they can maintain a good portion of the market before others who haven’t done the early leg work can cash in, riding on their coat tails.

BUT patenting a gene is wrong.

Patenting biological material that already exists in a particular form in nature is wrong.

Patents recognise invention – not discovery of something which already exists.

A genuine invention should get all the protections it can, and if a large corporation happens to be that inventor then good on it and may it protect its interests with all its might. The great thing about patents is they protect the little guys as well as the big guys.

But a patent should not apply to a discovery. Imagine the world if all the past discoveries in the natural world were owned by a company rather than just being part of the human knowledge bank.

These biotech companies did not INVENT the genes they fight so hard to patent. They may have DISCOVERED them and deserve the due rewards, but they should not be able to patent them.

In Australia we’ve already had many gene patents, and there’s already been controversy around the breast cancer gene.

The Australian company which has the gene licence here “gifted” the intellectual property rights to BRCA1 and 2 to a couple of research institutions (including a specialist cancer research institution) and didn’t charge them royalties. That was nice of them.

But then a couple of years later wrote to the institutions threatening legal action and told them to stop testing for the genes in at-risk women.

Public outcry nipped all that in the bud, thank goodness.

There are some serious ethical issues which must be dealt with if we are to continue patenting genes, including the ownership of that genetic material when it occurs inside or outside the human body and the voluntary donation of tissue rather than any form of tissue harvesting to secure genetic material.

Informed consent is crucial for people who may have tissue collected, and I do mean INFORMED. Fully and completely so there is no grey area.

So think of all the genes that make you who you are.

Now imagine that one of those genes has been isolated by a biotech company and is then used to develop a crucial test or treatment for a particular disease or illness.

They patent that gene.

How much could your tissue be worth to a company? Could they, in years to come if substantial protections are not in place, demonstrate that you are in possession of their material if you carry that gene?

And when you pass your genes to your children…who owns their tissue?

And your grand children?

Footnote:

The Australian Senate has been investigating some of the issues around gene patents through a Senate Inquiry, which should report soon on its findings now that we have a government.

The inquiry began in November 2008 and was due to report late November 2009. The reporting period was extended three times, then put on hold completely from July 19^th 2010 because of the 2010 federal election.

Is this important matter getting timely attention, especially as the legal clock is ticking both here and in the US?

As at September 8^th 2010 no reporting date has been set and according to the Committee Chair, Senator Rachel Siewert the committee will reconsider the issues of this inquiry in the event that it’s re-referred to the committee in the new parliament.