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The future is here, and it's nuts

Here's an idea I had for a dystopic novel about capitalist excesses: In the future, companies that discover the functions of human genes can patent the genes they decode. Crazy, right? They then get to control all research over those genes. If their research shows that the makeup of a particular gene controls your likelihood for breast cancer, for instance, they can refuse to let other companies or organizations offer breast cancer tests that look at that gene. Think about it: For-profit companies controlling the most fundamental information about human life. Information that's written into our very genetic code.

Scary stuff. Only this isn't my weird science fiction idea. It's the way our patent system currently works.

By Ezra Klein  |  April 19, 2010; 7:08 AM ET
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Posted by: cordisailie | April 19, 2010 7:27 AM | Report abuse

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Posted by: cordisailie | April 19, 2010 7:29 AM | Report abuse

Have you read Michael Chrichton's last novel, Next?

From Wikipedia:

In the backstory, Frank Burnet contracted an aggressive form of leukemia and underwent intensive treatment and four years of semiannual checkups. He later learned that the checkups were a pretext for researching the genetic basis of Frank's unusually successful response to treatment, and that the physician's university had sold the rights in Frank's cells to BioGen, a biotechnology startup company. As the book opens Frank is suing the university for unauthorized misuse of his cells, but the trial judge rules that the cells were "waste" that the university could dispose of as it wished. Frank's lawyers advise that, even if he wins an appeal, the university as a tax-funded organization can still claim the rights to the cells under the doctrine of eminent domain.

Posted by: stevie314 | April 19, 2010 7:31 AM | Report abuse

Next was a groovy novel.

How long do the patents last? Pharmaceutical patents have a relatively short shelf-life. I have less trouble with patenting a test that looks for a specific gene if that patent lasts for 5 or 7 years (the sort of window that isn't bad for establishing the reliability of such a test in the real world with broad exposure). If it's forever, now that's something else again.

Posted by: Kevin_Willis | April 19, 2010 7:53 AM | Report abuse

A US patent is typically 20 years. They can be extended and usually are for pharmaceuticals because a lot of these drugs need to be patented very early in the approval process. Basically, from the time they are found to have their effect on cells or animals or whatever. So the clock starts ticking very early in the process and by the time the drug gets FDA approval, the 20 year clock has been running for however long it takes. As a result, the drug companies can file for an extention - usually in the 7 year range, I think. That way, they can get some more mileage out of the patent before the generics come in and cause the drug price to crash.

No idea how this works for genes.

Incidentally, a court struck down patents on a few genes a few weeks ago.

Posted by: DDAWD | April 19, 2010 9:07 AM | Report abuse

thank you monsanto for setting this in motion. the pharm patents scare me a lot less than the fact that one company owns around 11,000 patents and counting to the world food supply. i just don't understand how you can own something that was created by nature over hundreds of thousands of years just because you were the first one to run it through a sequencer, it is really nuts.

Posted by: megankeenan | April 19, 2010 9:09 AM | Report abuse

This is actually a complicated issue, with good arguments on both sides. For example, if you make it impossible to "get a patent for a gene," you reduce the incentive to spend money to isolate the gene.

Posted by: ostap666 | April 19, 2010 10:18 AM | Report abuse

No one so far, including Ezra, has even attempted to deal with the most important question: can companies that come up with such treatments make a profit without patent protection. If they can't, they won't research such treatments anymore.

I'm not saying "corporate profits uber alles". I'm saying, particularly to Ezra, that this post and the subsequent comments are an example of cost-benefit analysis without the benefits.

Posted by: blsdaniel | April 19, 2010 10:34 AM | Report abuse

Patenting the process by which gene information is discovered seems patentable. Patenting the test for a gene also seems eminently patentable. But a sequence of DNA placed in a cell inside my body did not happen because of a process controlled by the test manufacturer, so how can they possibly 'own' the gene via patent?

But it strikes me that basically what these companies are doing is akin to digging a carrot out of the ground and patenting the carrot because they 'discovered' it.

They no more own the global concept of a carrot than they do the genes inside my body.

Posted by: RalfW | April 19, 2010 11:04 AM | Report abuse

Gene patents don't cover the genes inside your body. Gene patents cover the "isolated" DNA, extracted from cells in some useful form.
What you don't get from Ezra here, and what probably isn't clear from the WSJ article, is that this is coming up now because a Federal judge in NY just held a couple of gene patents invalid on the grounds that the law doesn't authorize the Patent Office to issue patents on genes. This case is going to go up to the appellate court, and could even end up at the Supreme Court in a couple of years, so we haven't heard the last of this.

Posted by: TomServo | April 19, 2010 11:30 AM | Report abuse

The issues are much more nuanced than whether a "gene" (a concept that is not nearly as clear as it once was thought to be) should or should not be allowed to be patented, or whether such patents should be allowed for corporations. For the record, the BRCA1 &2 genetic tests patents currently challenged in the appellate court case are owned by the University of Utah foundation. In any case, part of what is at issue is the breadth of gene patents, as well as whether merely "isolating" dna for a gene variant from human dna is sufficiently innovative to avoid being a discovery of something that already exists in nature, which would render it non-patentable. There is a long history of cases relevant to this issue, both outside genetics as well as in the filed of genetics.

Posted by: BFranklin3 | April 19, 2010 12:27 PM | Report abuse


I was under the impression there was a new ruling made by a federal court judge concluding the patenting of individual human genes unconstitutional, for the very conflict of interest you pointed out.

From John Schwartz at the NY Times:

"United States District Court Judge Robert W. Sweet issued the 152-page decision, which invalidated seven patents related to the genes BRCA1 and BRCA2, whose mutations have been associated with cancer."

link to article:

Posted by: dep05 | April 19, 2010 12:31 PM | Report abuse

The future is here, and Ezra can't be bothered to understand its complexities.

Posted by: Klug | April 19, 2010 1:28 PM | Report abuse

IP is out of control. Patents in particular. In many cases lawsuits are filed in what amounts to legal guerrilla wars waged between companies on flimsy or nonexistent evidence of infringement. A company will hire a team of lawyers and spend untold dollars proving the "truth" of their infringement allegations because if they succeed and are granted patent protection and can make untold dollars squared.

The original purpose of patents has long been subverted. These aren't basement inventors tinkering on their own dime. None of these companies/labs finance all of their own research costs. The federal government shells out billions in research grants, especially to the biotech industry. After couple years of product sales these companies have recouped whatever capital they originally put in and the rest is pure profit.

Don't even get me started on copyright and trademark. If the IP trolls get their way our great grandchildren will be paying royalties to Disney Corp. because Walt drew a mouse in 1928. If anyone can explain to me how that fosters creativity and innovation, I'm, um, all ears.

Posted by: dollarwatcher | April 20, 2010 2:35 AM | Report abuse

"For-profit companies controlling the most fundamental information about human life."

I wouldn't feel any better if it were governments or non-profits controlling it.

Let's get rid of "business method" patents while we're at it.

On the other hand, people that are trying to steal money by retroactively claiming ownership of their cells that have used in research make me sick too.

Posted by: staticvars | April 20, 2010 11:36 AM | Report abuse

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