March 20, 2006

Patents on Nature

Author Michael Crichton writes about the practise in patent law of assigning ownership of observed scientific patterns or fact. He describes an upcoming Supreme Court case against medical firm who used a patented fact in a publication. What was the patented fact? – "Homocysteine (an amino acid associated with heart disease) is correlated with a vitamin B-12 deficiency."

Crichton says,

But what the Supreme Court will focus on is the nature of the claimed correlation. On the one hand, courts have repeatedly held that basic bodily processes and "products of nature" are not patentable. That's why no one owns gravity, or the speed of light. But at the same time, courts have granted so-called correlation patents for many years. Powerful forces are arrayed on both sides of the issue.

He goes on

For example, the human genome exists in every one of us, and is therefore our shared heritage and an undoubted fact of nature. Nevertheless 20 percent of the genome is now privately owned. The gene for diabetes is owned, and its owner has something to say about any research you do, and what it will cost you. The entire genome of the hepatitis C virus is owned by a biotech company. Royalty costs now influence the direction of research in basic diseases, and often even the testing for diseases. Such barriers to medical testing and research are not in the public interest. Do you want to be told by your doctor, "Oh, nobody studies your disease any more because the owner of the gene/enzyme/correlation has made it too expensive to do research?"

Read in full here. (via Reddit)

There are no doubt ways to justify this. However, besides the cost of time and effort required to uncover some facts or products of nature, nothing obvious comes to mind. Intuition suggests patent claims should require some value-added; some element of novelty or creativity. For example, you shouldn’t be able to point to a worm and claim it as your own. You perhaps verify the existence of a worms, then go on to devise a novel way of testing for their presence. Or maybe you could patent a unique manipulated form of worm (and the process that allowed the manipulation). But to claim rights over observations/facts/naturally occurring matter without going any further seems pretty opportunistic.

- 2 comments by 1 or more people Not publicly viewable

  1. To me, it feels like a lot of intellectual property rights law is like this. Software patents in particular are notorious for their excessively wide scope.

    20 Mar 2006, 22:34

  2. Suppose I (be it a single person or a team) discovered the entire genome for AIDS. It might take us ten years of non-stop work, little funding and long hours, but we do it. Somebody else comes along, produces a vaccine in a few months and suddenly is making lots of money off my work.

    Now if "I" is an academic doing research sponsored by a company, then maybe this wouldn't be a problem. But if "I" is a company, then they should expect some return on their investment, and it's not exactly fair for them to see somebody else making money off their work. If they know others are going to hijack their work, what incentive is there for corporations to invest in research in the first place?

    Scenarios like this are the hideous cross between ethics and profit, but the ethical ideal of such things being open source does seem impractical.

    21 Mar 2006, 02:31

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