The Controversy over Gene Patenting, Part Two
by Anthony Teets
Those who criticize gene patent holders taking the stance mentioned in Part One of this articele use the argument that one cannot by law patent a discovery that is part of nature. "In truth," they say, "only an invention or an idea may be patented or copyrighted." In fact, the U.S. patent law allows the patenting of the methods of innovations as well as the discovery made through use of the method. Those who continue to argue that patent holders are attempting to patent nature misunderstand the patent laws. In his essay "Gene Patents can be Ethical," bioethicist Glenn McGee explained that "disease gene patents are not patents on products of nature but on scientific innovations." Concomitantly, he understood such "innovations" to belong to the domain of intellectual property. He thus concludes that "patents on methods for detecting the presence of a genetic correlation with disease-related (and other) phenotypes can be appropriate, and that with several precautions the U.S. Patent and Trademark Office should continue granting patent protection to investigators who generate genetic disease diagnostic inventions." Drawing on an analogy from the philosophical position called essentialism, McGee accuses those who present the patenting of nature argument as being "genetic essentialists." What they are arguing is that genes are some kind of metaphysical essences that are akin to a public library owned by all. Furthermore, they confuse the issue by insisting that all knowledge that is a product of discovery is itself part of the essence. This position he believes untenable and consistently undermines the project of rapidly sequencing the entire genome.
One of the more adamant advocates of genetic essentialism demonstrated her disproval in a very odd manner. Donna MacLean, a British waitress and poet, filed patent application GB0000180.0, in which she sought to patent..."Myself." MacLean wrote, "It has taken thirty years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious." While such extreme attempts to counter the patenting laws are rare and usually confined to Europe, the position does in fact claim a lot of U.S. adherents.
In May 1995, religious leaders organized the Joint Appeal Against Human and Animal Patenting (JAAHAP), a coalition petitioning the U.S. government to intervene and stop patenting. Spokesman Bishop William Friend stated, "We are dealing in a larger context...the sovereignty of God." By introducing this transcendentalist argument, Friend sidestepped the main argument for gene patenting. According to biologist E.O. Wilson, the transcendentalists "tend to view natural laws as a set of principles so powerful, whatever their origin, as to be self-evident to any rational person." The Honorable Gerald J. Mossinghoff, former Assistant Secretary of Commerce and Commissioner of Patents and Trademarks and a former President of the Pharmaceutical Research and Manufacturers of America, countered the JAAHAP's argument by stating "Patents are needed to protect scientists-for a limited time-from attempts by others to commercialize their research. It takes many years and hundreds of millions of dollars to develop a new medicine. Without patent protection to assure that the originator of the medicine will be able to recoup this investment, biotechnology companies could not attract the needed funding." Most argumentation in fact begins from the assumption that government regulation is required in every instance of private initiative. Our society is so used to regulation that we become almost immediately concerned in its absence.
More shocking however is the argument that patenting is the attempt to capitalize on God's creation. This belief comes from the primordial fear of the unknown. Who has not heard the popular warning that "We can't play God?" The argument appeals to human fallibility and states an admissive humility that seeks to correct "intellectual hubris." Similar arguments appeal to the Greek myth of Prometheus, who stole fire from the Olympians and increased the power of mortals. "It is just another example"-state the transcendentalists-"of man playing at being God." It may be argued that a doctor or a surgeon "plays God" whenever a disease is encountered and cured. No one would regulate a doctor in his profession or claim that he is usurping the role of evolution by intervening to save the life of a patient. Those who claim that gene patenting should be disallowed often make the related claim that health care should be a right of all people and that doctors and anesthesiologists do not have the right to claim rewards for skills that are "services to humanity."
The opposition also states that gene patenting is not valid when correlating discoveries about genes with specific "innovations" made through the diagnostic process provides the criteria. This second argument appears in a rebuttal to McGee written by Jon F. Merz and Mildred K. Cho. Drawing an analogy from the hunt for the Great White truffle, they bolster their claim that gene patenting is merely the attempt to make a claim that looking for something in nature does not warrant a patent. Aside from the obvious mistake in assessing the relative difference in gradations, Merz and Cho insist that the methods used by highly specialized biotechnologists are readily available to everyone. This in fact is not true as biotechnologists admit the enormous difficulty and considerable costs involved in doing the kind of research required in genetic coding. To dismiss this highly skilled procedure as an operation that is "obvious" weakens their claim.
This type of objection to gene patenting is based on the error of equating a potential with the actual. They cannot make such a claim without also debunking the enormous skill involved in creating the process of detection. "Just because you've sequenced a gene or a segment of a gene doesn't mean there's any creativity or ingenuity in it. Sequencing is so rapid and easy nowadays, and you don't even have to have any knowledge of what the sequence you've isolated might do," says David Korn, M.D., and AAMC senior VP for Biomedical and Health Sciences Research. Aside from demonstrating a complete lack of an intellectual grasp of economics, Korn also makes the error of trivializing the research and expense that sequencing involves. He overlooks the value of investment in assets that is typical of a scientist trained on equipment provided at the public's expense.
When Craig Venter revealed that he would join the race to finish the HGP by forming a private enterprise (Celera Genomics, 1998), the scientific community was outraged that this upstart would have the audacity to privatize the project. "They angrily labeled Venter the "Bill Gates of Biotech," threatening to gain almost total domination over the human genome sequence just as Microsoft had (at least until government threats to break up the company) over the software industry." This demonstrates the inevitable fact that the scientific community has become, by and large, hardened to the advancements made in biotechnology and nanotechnology. It also demonstrates the overwhelming bias against industry that has characterized the advancing socialization of research.
The guiding force in the scientific community, however, is not intellectual hubris, but the marshalling of our knowledge derived from empirical observation, to the purpose of understanding the limits and the potential open to the human community collectively. This ethical concern was inherent in the HGP from its inception, as 3% to 5% of the budget allocated for the project was set aside for ethical, legal, and social implications. Concerned that memories from a troubled past would invariably arise from the dark spectre known as "eugenics," the HGP would seek to maintain an attitude of admissive humility and to moderate all claims. The word eugenics refers to the concept of improving upon a population by encouraging the "fit" to have children and to the "unfit," not. Francis Galton, cousin of Charles Darwin, coined the word in 1883. Although the notions involved in the historical aspect of eugenics belong to the dustbins of the past, the word often appears in contemporary bioethical discussions where the rhetoric assumes an accusatory stance.
A recent film, After Darwin: Genetics, Eugenics, and the Human Genome (1999), relates the topics in a direct way. The promise of eliminating genetic disease is countered by the threat of eradicating human diversity. The potential of genetics to reward humankind is matched only by its capacity for harm. In this documentary horror flick, interviews, archival footage, and period film clips are used to trace the history of genomic research. But it is more than that. It is a horror documentary that presents the subject in a manner calculated to create fear and anxiety, distrust and loathing. It uses behavioral genetics, eugenics, and the "commodification" of children to warn all who would be dazzled and mesmerized by the new technology. Dr. Leroy Hood, Nobel Laureate Dr. James Watson, and numerous other experts speak about the HGP, gene patenting, cloning, fertility clinics, genetic testing, and the discriminatory practices of insurance companies in a manner so negative that they dismiss the potential of the biotechnological revolution and improperly assess its actuality.
Clearly it is only something like our distance from the mistakes of the past which allows us to use use the errors of the past to check our progress. No one is denying this. The attempt to use argumentation laden with accusatory rhetoric, political bias, and arguments ad baculum will do nothing to advance research and will only kill the spirit of invention-- as it has done for centuries. In a mixed economy, we must remind ourselves that those who stake their claims to rewards based on personal investment are entitled to the fruits of their labor. We are not all socialists now.
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