Genomes, and how to make them property.

Yana and I had conflicting impressions of what the law is regarding whether you can patent a gene, or merely the process of isolating a gene. I proposed that you can’t patent a pattern, but there are other intellectual property laws that would allow you to own a gene you discovered.

So, it’s useful to hear it straight from the horse, an interesting newsletter by Monsanto:

It refers to a “biotech trait” — the genetically engineered resistance to Monsanto’s Round Up herbicide — that is protected by a patent and an end-user license agreement. Farmers who buy Round Up Ready seed sign an agreement that they won’t save seeds (this, in lieu of Monsanto attempting to sell seeds with a ‘terminator gene’ which produces a plant with sterile seeds, but that is a whole other matter).

So, Monsanto was awarded a patent for a gene that they invented, among other patents for gene insertion techniques. The relevant court cases seem to be focused on the EULA, the contract, more than the legitimacy of the patent.

So, it looks like you can patent a gene that you invented. But this NPR story refers to the a more recent controversy — Myriad Genetics attempting to patent an isolated human gene, not one they invented, but one they isolated.

Their side of the story was that the isolated gene is a different molecule than the human genome, DNA being a giant molecule containing tens of thousands of genes is natural, but this gene on its own, as a separate molecule, that is something that was unavailable to researchers before, and so, it is their invention.

The whole thing has a great back and forth with the opposing sides of the case making creative analogies to argue whether their invention is man made or a product of nature.

I don’t quite understand how having a patent on the isolated molecule gives them the legal standing to block other research and tests.

I think it’s an extremely tricky situation to decide what kind of science to allow patents on. The ramifications include what research will be funded: opiate medicines can be patented, and therefor be made exclusively with a high profit margin, so it’s a very active area of research. Marijuana and other straight-out-of-the-ground natural remedies cannot be patented, and a company selling it would have to deal with a hundred competitors selling the exact same plant, so it can’t be nearly as profitable as opiates and other patent medicines, so there’s not nearly as much of an incentive to fund research into its efficacy. (The role of the DEA completely outlawing research with its drug schedule is another matter. Or maybe the same matter — pharmaceutical companies protecting its profitable products by preventing the use of competitors.)