By Kevin Noonan
Michael Crichton has always hated – or feared –
technology. In his novels The Andromeda
Strain, The Terminal Man, and Jurassic Park, he has been a technology Cassandra, a
modern-day Luddite warning that technology would get us if we weren’t very
careful. And while space viruses,
inhuman cyborgs, and thunder lizards are entertaining as fiction, they shouldn’t
inform national policy.
That is what Dr. Crichton has been trying to do recently,
neatly dovetailing these efforts with promoting his latest book, Next. The bogeyman this time is DNA patenting,
which he assails in an OpEd piece in The New York Times today. Unfortunately, the misstatements and
exaggerations in the piece make it closer to fiction than it has any right to
be, appearing in the pages of the "paper of record."
The problems begin with the title, "Patenting
Life." Patenting life isn’t what he
is concerned with – it is patenting DNA. DNA is not life, any more than patenting Vitamin B12, proteins, or
hormones isolated from animal (or human) material. Writers like Dr. Crichton (particularly
academics, who should know better) have created a "new vitalism;" in
this philosophy DNA is "different" and patenting DNA should be
prohibited. One problem with their
position is its intellectual dishonesty: as Dr. Crichton does here, they accuse
gene patentees of having ownership rights to "your" DNA (the DNA in
the cells of a person’s body). This is
nonsense, since anyone familiar with this space or any other truthful
description of DNA patenting knows that patented DNA must be
"isolated" or "isolated and purified." In short,
no one has ownership rights over "your" DNA (or mine, or Dr. Crichton’s).
Dr. Crichton chooses an easy target as "bad
guys" in his fiction: the
oft-maligned patent examiners that he holds responsible for gene
patenting. If there are culprits, of
course, it would be the U.S. Supreme Court who in the Diamond v. Chakrabarty
decision opened the doors for patenting genes and a host of other things that
have been important components of the biotech industry. Dr. Crichton would have you believe that the
"good guys" are those commercial interests in the rest of the world
who provide genetic testing using patented DNA more cheaply than in the
U.S. What Dr. Crichton doesn’t say is
that these "free-riders" on American innovation only exist due to
their governments’ tardiness in protecting biotechnology inventions. Dr. Crichton characterizes as a
"disaster" the decision to permit gene patents in the U.S. The real disaster has been in the rest of the
world, particularly Europe, where they are paying the price today of their
political decisions that frustrated patent protection for biotechnology. As recently reported in The Washington Post, European pharmaceutical companies have suffered both economically and
in their drug product pipeline: where a generation ago the Europeans
predominated, now it is American inventions and American companies that lead
the world. Much of this advantage stems
directly from patent protection available for the biotechnology industry.
There are a host of other pertinent facts omitted from
the piece. Examples include: that the
patent right is limited (to 20 years from the initial filing date), so that the
invention becomes freely available to the public for eternity once the patent
expires (the robust generic drug industry depends on this fact). That DNA is both a patented chemical compound
(that can be infringed) and genetic information, which information is freely
available upon publication. That no one
"owns" a disease nor has inhibited research on a disease. That DNA patenting has not encumbered
research; indeed, despite fears (voiced, famously, by Rebecca Eisenberg) that patenting
DNA would lead to a "tragedy of the anticommons," research shows that
gene patents have not impeded DNA research in academia. See "The ‘Anti-Commons’ Aren’t So Tragic, After All."
What patents do is protect inventors from commercial
infringement of their inventions, and permit small companies to obtain the
financial backing necessary to develop the very genetic tests and therapeutic
drugs Dr. Crichton complains about. The
pages of the Times recently provided stark evidence of the economic advantages of
patents in the U.S., in a profile of Xoma Corporation. The Times writer decried the amount of
investment ($700 million) in a company that in 25 years had not developed a
successful commercial product. Paradoxically, this demonstrates the genius and strength of the patent system, since it is only
with this type of investment that companies like Xoma (and a host of more
successful biotechnology companies) have been able to survive. What the piece shows is how difficult and
expensive it is to develop a biotechnology product; no sane investor would
place his bets on such companies without patent protection, and without
investment the industry could not survive.
Dr. Crichton’s attack is political, as is the bill introduced
on Friday by Representatives Becerra of California and Weldon of
Florida, which would ban gene patenting (more on that in a later post). This is a mistake, and there is ample
evidence from our recent history that it is a mistake. At least one reason why the U.S. did not
become the country Dr. Crichton described in another of his books, Rising
Sun – an aging, rust-bucket, economic
wreck that could not compete with the facile new democracies of Europe and
Asia – is that America was quick to
protect its innovators and innovative industries like telecommunications,
computers and biotechnology. Thirty
years ago, everyone had a Sony Walkman, today it’s an iPod. And thirty years ago Europeans were producing
most new drugs; today, it is America. Whether the political motivations are "Green" or religious or
merely careerism (by either novelists or academics), the mistake would be to
ignore the lessons of history. We
shouldn’t be killing the golden goose of American innovation.
Dr. Noonan has written a number of Patent Docs articles on the issue of gene patenting, including:
Patent Docs 