Annual Meeting 2007

Panelists Ask: Who Owns Your Genes?

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Michael Crichton, who fills a rather unique niche in turning science into literary fiction, says the U.S. Patent and Trademark Office goofed in dealing with one of the most fundamental aspects of life. It let our individual genes be patented by drug companies and other enterprises.

And that is thanks to a 1912 trial court’s legal opinion upholding a patent on an “isolated and purified” form of the active ingredient of adrenaline, the so-called fight-or-flight stress hormone. Parke-Davis v. H.K. Mulford, 196 F. 496.

The result is that the benefit of knowledge concerning genes is flushed away like so many strands of hair that carry them. Gene patents are issued for “isolated and purified” genes, but Crichton and others argue that they are precisely the same as genes still in the body. They carry information, and all that identical information is in both the body and the isolated genes.

The patent door has been flung open so far in this area, he said, “Now we’re seeing patents and don’t know exactly what they’re patents for.”

Thus the question in the title of the panel Sunday at the ABA Annual Meeting in San Francisco: “Who Owns Your Genes: How Gene Patents Are Trampling Individual Rights.” It was sponsored by, not surprisingly, the ABA Section of Individual Rights & Responsibilities.

Lori Andrews, a professor at Chicago-Kent College of Law, told the gathering that “you routinely handle cases that deal with privacy, religious freedom, free speech, reproductive liberty and bodily integrity. Astonishingly, patents on genes touch on all those areas.”

For example, she pointed out later, “Southern Baptists and Native Americans believe that their religions prohibit gene patenting, but nonetheless their genes have been patented without their consent and in violation of their beliefs.”

Further, according to Michele Goodwin, a professor at DePaul University College of Law, there is a commercial market in tissue that is used without the knowledge and consent of the humans from which it is derived, and it is patented without their permission.

Swimming rather alone over on the other side of this gene pool, Lester Savit, who heads the intellectual property practice in the Irvine, Calif., office of Jones Day, patently objected to the complaints. He argues that gene patents are just like any other because they have been isolated and purified. And that’s the law.

Crichton’s most recent novel, Next, published in December 2006, concerns genetics and law. Professor Andrews has written a lot on the topic, including her book Future Perfect: Confronting Decisions About Genetics.

Andrews is particularly concerned about patent holders impeding medical diagnostic advances and cures.

“Some gene patent holders have stopped research on their genes by competitors,” Andrews said. She pointed out that “I have a First Amendment right to donate money to a political campaign, but can’t donate my breast cancer or asthma genes to a researcher.”

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