Gene patents not so bad

| October 1, 2014

There has been strong opposition to a Federal Court decision that human genes can be controlled by private companies. Medical ethicist Dr Alberto Giubilini says the patenting of genes by private companies is not necessarily a bad thing provided it’s well regulated.

The Federal Court of Australia recently up-held a patent on mutations of the so-called breast cancer gene BRCA1 prompting outrage from some and calls for Australian laws to be changed.

There’s no reason to fear privatisation of research and patenting as a principle. Private companies’ research on gene therapies for cancer can be very efficient, sometimes more efficient than that carried out in public laboratories because private companies might have more money to invest in research. The problem is how to regulate this private research. Laws and restrictions on the research and use of research results can be put in place to make sure that the most vulnerable people, cancer patients in this case, will not have to pay the cost of the patenting. For example, companies could be put under the obligation to share methodologies and results at a reasonable cost, with financial support from the Government if necessary.

While the problem of costs for cancer patients is something that could be regulated by good policies, there is an emotional and intuitive element in the aversion to the idea of patenting gene sequences, which many people do not see as something that can become private property of a company. The issue of whether the gene isolated for patenting is, or is not, the same thing as the gene as found in the human body, which seems to be at the root of the intuitive aversion,  is certainly relevant for the current legal dispute. Australian law only allows patenting new inventions, and not naturally occurring things. From an ethical perspective, however, this dispute is pretty useless and does not add much to a rational assessment of the Court’s decision.

Of course, in one sense a gene sequenced in a laboratory is a new thing, because it functions in isolation rather than as part of an organism. In another sense it is a naturally occurring thing, because the same DNA sequence can be found in some humans. As is often the case, legal disputes are based on different interpretations of ambiguous terms according to the conclusions different people want to reach. This is not the right path to make progress in ethical and political reasoning but less ambiguous laws are needed to keep up with scientific progress. Because isolating and sequencing genes is now possible, laws should acknowledge this and clearly define the legal status of laboratory genes.

Most importantly we should shift the focus of discussion towards considerations about efficiency of private research, rather than on disputes about what is, or what is not ‘new manufacture’. The key consideration is whether patenting genes is the best option in terms of research efficiency and benefits for patients. Patenting and privatisation in the field of medical research needs particular scrutiny and regulation, more than other fields, because at stake are the health and life of millions of people. Provided that good regulations are put in place, there is no reason to think that patenting research is a worse option than publicly funded research, at least in terms of cost-effectiveness and results.