Are Gene Patents Hijacking Your Biology?
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Related subjects: Discussion Forum, Health Science, Human Health, J.E. Robertson, L'accés: Society of Access, Legislation, Open Government, Rights & Freedoms, Science & Technology, TheHotSpring.net, U.S. Law, U.S. news Comments Off
Intellectual property laws designed to help protect the ability of researchers to retain compensation for major innovations have led to a uniquely problematic “innovation” in the laws themselves, where specific genes, or the informational access to them, are patented, barring individuals or their physicians from dealing directly with those genes except through the for-profit patent-holders.
There are critics of these patents that say they are actually an impediment to the advance of research in the field. And some patients have already experienced the unenviable situation in which a “risk-of-cancer” diagnosis cannot be double-checked, because the patent-holder for a specific gene will not permit a second opinion to be obtained through any other entity.
There is strong legal theory behind the view that this type of patent is an aberration and possibly even an unconstitutional hijacking of the private biological information of individual citizens.
Patent-law principle: it is a fundamental requirement of US patent law that patents be applied to specific mechanisms that are not naturally occurring and which are “non-obvious” as extensions of existing mechanisms. Genes are, of course, naturally occurring, constitute mechanisms nit created by their discoverers, and should be considered “evident” in themselves, given the now extensive scientific understanding of their composition and function.
What’s more, they not only already exist, but they exist in the native biology of every human being, 100% independent of the labors of scientific researchers. A fair analogy in the way of intellectual property, regardless of natural occurrence, might be copyright law and music. No one is allowed to copyright musical notes themselves, nor “discoveries” made by listening to a specific copyrighted series of notes both would clearly hinder creations or “innovations” reliant on those notes, only specific texts rendering unique sounds in a precise sequence. Copyrighting individual notes would clearly hinder “innovations” reliant on those notes.
US Constitution: the Fourth Amendment reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Those interested in patenting human genes, or securing the sole legal right to test, access or report on specific genes, would argue the Bill of Rights only regulates government actions, but a patent is a legal ban imposed by the government, and supported by law enforcement. Surely, if all people have the right “to be secure in their persons”, placing a government imposed order on something already biologically fundamental to the inner workings of the body could be constituted as a “violation”.
Now, imagine you seek health treatment, but cannot access or control the information about your own genes, due to a patent that gives a for-profit firm exclusive “rights” over your genetic information.
What benefit to society is there in allowing your health treatment to hinge on whether or not you can afford to pay a specific firm a high fee for access to your own biological information? Is it just that your health outcome depend on whether or not they will grant you access or whether their specific mode of treatment is trustworthy and effective, when others might be better able to apply the necessary techniques?
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