Do gene patents help or hinder health innovation?

The Department of Justice recently weighed in with a court opinion that appears to contradict long standing government policy, as well as the practice of the Patent and Trademark Office and National Institutes of Health (NIH), that promoted the rights of biotech companies to patent human genes. In a case challenging the legality of patenting genes, Justice filed a friend-of-the-court brief ironically agreeing with both sides. This new government position claims that simply discovering a gene's function does not give you the right to patent it, since it is still part of nature. You do, they assert, have a right to patent a process that alters or manipulates that gene.

The biotech sector has a lot to offer, and is predicted to thrive under health reform. Gene therapies they discover hold tremendous potential, even if they are fraught with ethical dilemmas. We are, after all, talking about those most basic components of our being, the essential structures that make us "us", the fixtures, if you will, that turn our bodies from empty spaces into rooms with purpose.

There's no question that patents encourage biotech to invest in gene therapies that are the heart of medical treatments personalized to individual risks. On the other hand, what are some of the unintended consequences of patenting genes themselves? Some 20% of the human genome has already been patented. Does this speed medical innovation by encouraging investment in research? Does it hinder innovation by narrowing the field of who can investigate specific genes?

What about research originally funded by tax-payers through NIH or other grants? Or health research spawned in state universities, or other academic centers built on the promise of furthering humankind's knowledge base, do they have a social responsibly to generate knowledge that remains in the public domain for public good? Or is it irrational and naive to assume that they shouldn't seek lucrative business opportunities, even securing gene patents, so that they can help secure financial sustainability?

The government's friend-of-the-court brief certainly didn't answer any of these meta-questions. Care to weigh in? Please do!

Photo credit: The author, via flickr