Imagine this: There is a very tall pear tree in the garden. You found a way to climb up to the tree (where nobody can) and picked a pear from this tall tree. You come down and say, "I DESIGNED this pear. No one can use this pear or any other pears similar to this that grew from this type of "tall" tree, because I got there first. And if anyone wants to get this type of pear from another tall tree anywhere else, you have to pay me ROYALTIES before you have the right to use that other pear." It is also further emphasized that it is not the technology of climbing up that tree that is claimed an intellectual property, but the DESIGN OF THE APPLE ITSELF that grew from the tree that is subject to claims of intellectual property and rights that follow.Everyone would think that to be absurd. But this is exactly what has been happening in the biological engineering world, especially in commercial laboratories such as Myriad. Throughout the decades, these laboratories have successfully isolated genes out from animals, human beings and vegetation, and have then patented the design of such genes. The act of patenting these genes mean that if anyone wanted to generate medical research that resulted from the exploitation of those patented genes will have to pay a fee to those companies, thus protecting the original company's efforts throughout the years of obtaining those genes.
Patenting Non-creative Matter?
A knowledgeable layperson
would figure out that there must be something fishy going on here. And he/she would be correct. The problem here is about patenting things that the alleged author did not necessarily create.
One may design a machine for automatically create barrista-styled coffee, and subsequently patent the design of that machine to protect his/her rights. This is understandable arising from the fact that the creator would desire fruits from all that hard work, if the design is publicly used and benefits the society as a whole. The creator of that design should reap the benefits for his/her creativity.
This is not the case with gene patents. It is not the case that commercial laboratories are patenting the design of scientific mechanisms required to extract those genes (if it were, then the argument would've ended here), it is the case that commercial laboratories are patenting the design of the gene itself that they have extracted. It is of course, common sense, that those genes were not designed or created by the laboratories, but were merely animal/ vegetation products that were developed through evolution by natural selection, or if you so religiously inclined, created by _________ (insert deity/ deities of your choice).
So What's "Their
" Side of the Argument?
Nothing. They've basically resorted to political or public policy arguments, most of which are legally weak submissions. It pretty much boils down to this: We've been patenting genes for years. A lot of us, commercial entities, would suffer loss from continuous profits that fund research and labs. Without such patenting systems, monetary benefits would disappear, and there would be no more incentives for future research and development.
This argument, I would opine, to be only partially true, if not even completely misleading. Firstly, there is nothing preventing the patenting of the mechanisms required for extracting those genes. If Commercial Laboratory X develops a machine or tool that, without such tool, those genes could not be isolated or extracted at all, laboratory X may by all means register patents over the design of those mechanisms, since it was laboratory X who developed such a design. This will ensure that whoever attempts to isolate similar genes, or in fact, different genes using the method developed by laboratory X will be required to obtain laboratory X's permission and pay them a fee they charge. Secondly, even if the extracting or isolating mechanism is easy enough that no one would be able to argue that any patent could be legitimately lodged, nothing in common law or statute prohibits laboratories from patenting genes that have been substantially transformed by the laboratories themselves. Therefore, it does not affect medications such as Gardasil that are developed from artificially manipulate genes that are used to treat various diseases. After all, the substantial transformation is a type of creativity, or original manipulation, applying for patents for such altered genes do continue to make logical sense in this way. Pharmaceutical companies and scientific research entities will not lose such patents and their profits from these areas of patents remain unaffected.
The only issue which might be one that I would be sympathetic towards supporters of gene patenting is the retrospective effect of a court ruling, as well as the proposed legislation i"Patent Amendment (Human Genes and Biological Materials) Bill 2011" in the Australian Federal Parliament. All current gene patent holders including the Science Department of my university, Sydney, would most likely through no fault or actual knowledge of fault of their own, suddenly be rendered as if patents that they have been holding till present never existed ab initio. The amount of compensation they would have to return due to wrongfully charging royalties or fees, as well as compensation towards hindering others from research to those whom they have refused to grant the right to use the genes they patented would be extremely large... the consequences would be dire.
But so what? That's how common law systems work (the ginger beer manufacturer had no idea that being negligent led to tortious liability, yet it had always been the law regardless of whether anyone had argued its existence before), and the proposed legislation did nothing more than to potentially clarify how the patents legislation was supposed to work anyway. The law was there all along, nobody bothered to look carefully or seek legal advice prior doing anything "ambitious". If you take the risk, you suffer the consequence, this time the consequence only came decades too late.
Patenting Non-creative Matter?
A knowledgeable layperson
would figure out that there must be something fishy going on here. And he/she would be correct. The problem here is about patenting things that the alleged author did not necessarily create.One may design a machine for automatically create barrista-styled coffee, and subsequently patent the design of that machine to protect his/her rights. This is understandable arising from the fact that the creator would desire fruits from all that hard work, if the design is publicly used and benefits the society as a whole. The creator of that design should reap the benefits for his/her creativity.
This is not the case with gene patents. It is not the case that commercial laboratories are patenting the design of scientific mechanisms required to extract those genes (if it were, then the argument would've ended here), it is the case that commercial laboratories are patenting the design of the gene itself that they have extracted. It is of course, common sense, that those genes were not designed or created by the laboratories, but were merely animal/ vegetation products that were developed through evolution by natural selection, or if you so religiously inclined, created by _________ (insert deity/ deities of your choice).
So What's "Their
" Side of the Argument?Nothing. They've basically resorted to political or public policy arguments, most of which are legally weak submissions. It pretty much boils down to this: We've been patenting genes for years. A lot of us, commercial entities, would suffer loss from continuous profits that fund research and labs. Without such patenting systems, monetary benefits would disappear, and there would be no more incentives for future research and development.
This argument, I would opine, to be only partially true, if not even completely misleading. Firstly, there is nothing preventing the patenting of the mechanisms required for extracting those genes. If Commercial Laboratory X develops a machine or tool that, without such tool, those genes could not be isolated or extracted at all, laboratory X may by all means register patents over the design of those mechanisms, since it was laboratory X who developed such a design. This will ensure that whoever attempts to isolate similar genes, or in fact, different genes using the method developed by laboratory X will be required to obtain laboratory X's permission and pay them a fee they charge. Secondly, even if the extracting or isolating mechanism is easy enough that no one would be able to argue that any patent could be legitimately lodged, nothing in common law or statute prohibits laboratories from patenting genes that have been substantially transformed by the laboratories themselves. Therefore, it does not affect medications such as Gardasil that are developed from artificially manipulate genes that are used to treat various diseases. After all, the substantial transformation is a type of creativity, or original manipulation, applying for patents for such altered genes do continue to make logical sense in this way. Pharmaceutical companies and scientific research entities will not lose such patents and their profits from these areas of patents remain unaffected.
The only issue which might be one that I would be sympathetic towards supporters of gene patenting is the retrospective effect of a court ruling, as well as the proposed legislation i"Patent Amendment (Human Genes and Biological Materials) Bill 2011" in the Australian Federal Parliament. All current gene patent holders including the Science Department of my university, Sydney, would most likely through no fault or actual knowledge of fault of their own, suddenly be rendered as if patents that they have been holding till present never existed ab initio. The amount of compensation they would have to return due to wrongfully charging royalties or fees, as well as compensation towards hindering others from research to those whom they have refused to grant the right to use the genes they patented would be extremely large... the consequences would be dire.
But so what? That's how common law systems work (the ginger beer manufacturer had no idea that being negligent led to tortious liability, yet it had always been the law regardless of whether anyone had argued its existence before), and the proposed legislation did nothing more than to potentially clarify how the patents legislation was supposed to work anyway. The law was there all along, nobody bothered to look carefully or seek legal advice prior doing anything "ambitious". If you take the risk, you suffer the consequence, this time the consequence only came decades too late.
