Now, L.A. Times Gets It Wrong on Gene Patenting
By Kevin E. Noonan —
Maybe it is just the state of newspapers in the 21st Century — a 19th Century medium supplanted by technology that is
more immediate, extensive, comprehensive, and relevant. Or maybe it is the pressure of
deadlines and "getting the story," although "getting" it
correctly seems to be an anachronism. Or finally, maybe it's just being named "The Times," whether
on the right or left coasts, that makes it impossible to render a rational
opinion on patenting.
But Sunday, in an editorial entitled "Genes and patents," the L.A. Times joined its East Coast
cousin in taking an inaccurate and irrational position on an important
question: patents on diagnostic
methods involving genetic information.
"According to the Patent Office," the editorial reads, "patents can be obtained for 'practically
everything which is made by man and the processes for making the products,' but
not naturally occurring substances." Not exactly, of course. It
is the U.S. Supreme Court that determined that the patent statute (and the
constitutional basis thereof) is to grant patents on "anything under the
sun made by man," in Diamond v. Chakrabarty. As the Court
explained, quoting Kewanee Oil Co. v. Bicron Corp., "[t]he authority of Congress is
exercised in the hope that '[the] productive effort thereby fostered will have
a positive effect on society through the introduction of new products and
processes of manufacture into the economy, and the emanations by way of
increased employment and better lives for our citizens.'" The Office has followed the Court's instructions with regard to isolated
human DNA, as the editorial says by granting patents on "isolated [and]
purified" DNA.
While acknowledging
that the period of exclusivity is limited, the editorial cannot avoid the "m"
(for monopoly) word, and then repeats the falsehood that patenting isolated
human DNA for BRCA1 and BCRA2 stop researchers "not only from conducting
the tests but from doing more research into the genes' links to breast cancer
and other diseases." This
will come as a surprise, we expect, to the authors of the 7,200 peer-reviewed
scientific journal articles listed on the PubMed database in response to the
search term "brca1 or brca2" (you would think newspapermen would
understand the value of such a simple check on such a serious claim).
On the subject of the
importance of the exclusivity incentive for developing these tests, the
editorial says that:
[I]t doesn't necessarily follow
that barring patents for gene sequences would lead to fewer breakthroughs on
genes and their correlations with disease. There is a virtually insatiable
demand for better diagnostic tools and more efficient and effective treatments. The amount we know about health and disease pales in comparison to what we don't
know. This demand for advancement provides a powerful incentive for companies
to seek their fortunes in discoveries. Even if a gene can't be patented, its
discovery can lead to diagnostic and treatment techniques that can be.
Insofar as these
sentiments speak to the drive to innovate and develop diagnostic tests, they
are correct. What the editorial
writers miss is that such tests will not necessarily have the other important
(and typically neglected) feature of patented tests, i.e., that they are
disclosed to the public and available to all once the patents expire. Unlike other types of technology (who
wants to practice a patent on a 1980's vintage answering machine?), the value
of genetic diagnostic tests will not diminish with time, and they will be
valuable far longer than the exclusivity term for patents protecting them. This public benefit is not an
inevitable consequence, however — it is patenting that mandates disclosure as
the quid pro quo of the exclusive
grant. In their absence, it won't
be universities and other now-common sources of genetic information that are
involved in discovering genetic information commercialized as diagnostic tests
(since university professors will still need to publish their work). It will be private companies, that will
have no incentive to publish or disclose the genetic bases for their diagnostic
tests. In the world envisioned by
the editorial writers at The Times, throwing off the yoke of patenting will
lead to unfettered genetic diagnostic test development. In the real world, no one will
undertake the expense of perfecting such testing just to see larger or
better-financed companies out-compete them. (Have we learned nothing from the
1980's in this regard?) Rather, it
will be companies capable of developing tests for the kinds of multigenic
diseases that are most prevalent (diabetes and most cancers, for example) and
then keep the genetic information underlying these tests as their trade secret
in perpetuity (or at least much longer than the 20 year maximum for patented
technology).
The remainder of the
editorial is full of similarly fantastical statements — praise for Congressman
Xavier Becerra's benighted attempt to ban "gene patenting" by statute
(that, as the editorial states, never made it out of the Judiciary
Committee), for example. The editorial also states, without
attribution or reasoning, that Congressman Becerra's bill would not "undermine
the biotechnology or pharmaceutical industries — in fact, it could help them
do the research needed to develop their products," a stance opposed by, inter alia, the Biotechnology Industry
Organization (which no doubt knows more about what would undermine their
members' industry than does The Times).
The Times editorial
writers clearly accept the allegations of the ACLU and others that patenting
human DNA is "wrong," but like plaintiffs in the AMP v. USPTO lawsuit, they base their arguments on overstatements,
misstatements, and downright falsifications. It's unfortunate that such an important issue is being
argued on this level. With luck,
Judge Sweet in New York will see past the posturing and understand where the
public's true interests lie.
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