Your Genes – or Not

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The U.S. Supreme Court is hearing an interesting case. It’s about your genes or, more accurately, the question as to who owns them.

As Jeffrey Tucker writes in Tomorrow in Review, the U.S. Supreme Court is soon going to decide on one of the most contentious issues in medical science: “Can human genes be patented and to what technologies can those patents be extended to cover?”

gene sequence model

Background

A company claims to have unravelled the biochemical codes of certain human genes which are said to be specifically associated with breast and ovarian cancer in women. The mutation of such genes, so it is claimed, is responsible for increased risks to such cancers. The company which has determined the biochemical code wants to protect its turf, i.e. the right to sue any competitor using such information to cure, prevent, or mitigate the diseases. The American Civil Liberties Union is suing.

Lower court rulings have already been decided on both sides of the issue. Now the Supreme Court is deliberating it. Ultimately, the question to be decided is: Who owns your genes? A corollary of that is the question whether human genes or their biochemical codes can be patented at all.

Evolution of Knowledge

The evolution of knowledge and technologies continue at astonishing speeds. What was the latest gadget a couple of years ago is just about ready for the museum by now. Even my sons, both in the technology development fields, can hardly keep up with new developments. No wonder, the laws, law-makers, judges and the general populace are unprepared for that onslaught of innovation confronting them on a daily basis.

New knowledge is certainly the basis for the development of novel technologies. However, that new knowledge is commonly derived from a myriad of earlier hypotheses, tests, observations and findings by others. The process of any development begins with an idea to create something new, or better, or faster, or cheaper. If knowledge alone were to be patentable, the ideas leading to that knowledge should be patentable too.

My view, however, is that ideas by themselves are not patentable.

For example, many people have had the idea to build a perpetual motion machine and, in fact, there are several patents for such devices; even some current patents. However, no perpetual motion machine has ever been produced. If the idea alone of a perpetual motion machine were patentable, nearly everyone could claim to have had such or another “crazy” idea for all kinds of things.

Another example: I have the idea to design a novel engine with an energy-efficiency higher than described by the limitation of the Carnot Cycle theory. Such a device would revolutionize the world’s access to power. I just have a small problem though: I don’t know how to design or build such a device. But certainly the idea is great. So, please, if you have the wherewithal to design and build such an engine you are most welcome to do so. Just remember that it was me who had the idea and should be the main beneficiary of it.

Evolution of Laws

The evolution of laws regularly creates new problems. Even with the best foresight of the day, the development of entirely novel concepts often plays havoc with established views and laws. Some courts, when faced with such issues try to adjudicate them on the basis of knowledge and technologies known for a while. It works, sometimes. More often though, whenever radical new knowledge and technologies appear, the laws that were written long before such novelties could even be imagined cannot cope with the questions in a rational way.

The lawyers representing the competing sides do their utmost to bamboozle the judges to find in the way of their client. That is why some court decisions all around the world have given rise to widespread consternation and confusion.

The problem is not with the courts though. Rather it is with the run-on-legislation which has failed to allow straight-forward adjudication of unforeseen issues based on simple principles. In general, the more detailed the laws and resulting rules and regulations are, the more likely they’ll lead to courts being asked “to write law”, i.e. to conjure precedents of unknown proportions and significance. The current issue of who owns your genes is one of many such conundrums.

Prudent Laws

Prudent laws will use a clear language with horizons of applicability that allow for their application to future developments not dreamt of today. The Constitutions of the U.S. and Canada are examples of such broad and clear laws. They don’t need to be redefined, just applied!

That is the beauty of simplicity. Prudently-written general law rarely needs modification or amendment.

Laws which attempt to regulate every single eventuality that possibly could occur are bound to fail. Frequently, their “loopholes” are discovered by clever minds before they even become law. Part of the problem is that in order to make new laws palatable to political opponents (whose vote may be necessary for passage) many such laws contain more conditions for applicability, exclusions, exemptions, “add-ons” for expediency, and other unrelated “omnibus” items than actual text to describe its original intent and purpose.

In the U.S. alone, each year now provides for new legal code comprising in excess of 60,000 pages (small print at two+ columns). Obviously, no sane system can cope with that flux of new laws. Not surprising that court cases are taking longer than ever to be heard and appeals are becoming the norm. Furthermore, appeal court decisions are also becoming increasingly contradictory to lower court decisions. Many higher court decisions overturn the lowest court’s decision, sometimes followed by yet another overturn at the next level up. In turn, such cases are increasingly being brought to the Supreme Court.

Issues at Hand

As I see it, there are two issues which the court has to decide. The first is: who owns your genes. As far as I am concerned, it is you and you only.

The second issue is: who can benefit from work into the cause(s) or mitigation of (perhaps) “faulty” genes? By all accounts, the theoretical and practical efforts which have gone into developing the know-how as to causes and/or treatment possibilities for any disease belong to the inventor, but that is different from who owns your genes or their codes.

So, I think the question then boils down to a decision whether the knowledge (of which gene part conveys what propensity) is patentable or not. A related question would be whether or not there is new technology that allows the manipulation of a gene or part thereof in a certain useful way. My answers to these questions are:

The knowledge is not patentable but a novel technology is.

Reasoning

My reasoning here is as follows:

  1. New knowledge is certainly the basis for the development of novel technologies, but that new knowledge is commonly building upon myriads of earlier hypotheses, tests, observations, and findings by others.

  2. A novel technology allows the actual creation, change or manipulation of something to achieve a new product, such as an “improved” gene.

By way of comparison, let’s look at the development of the printing press by Johannes Gutenberg (in 1450). No doubt, you’ll agree that his novel technology eventually lead to the development of typewriters and, ultimately, to modern word-processing computers and other text-communication devices. If Gutenberg or his descendants had a currently valid patent (in most jurisdictions patents expire within two decades from application) on the machine that I am using to write this text, I would likely have been required to pay him a certain royalty when I bought the computer and word-processing program. However, the text I am writing is solely my property and it is protected by copyright laws.

Allowing any genes to be patented would be a mistake.