James Meek
One hot day in September 1893, at the sound of the starting guns, the rich prairie soil of the Cherokee Strip in Oklahoma was darkened by a flowing wave of humanity, horses and wagons. The United States government was giving away 33000km2 of Indian territory to any settler able to race fast enough to stake a claim. One hundred thousand men, women and children stormed across the starting line to seize their piece of land.
More than a century after the Great Land Run became a symbol of the American frontier spirit, another rush for rights is under way. This time the arena is the chemical sequence which makes us what we are: the set of genes each of us carries, in trillions of copies, in the cells of our bodies.
Research shows that pharmaceutical companies and biotech firms have filed patents on 127000 human genes or partial human gene sequences. They have patented genes that make our brains work, that make our livers grow, that keep our hearts beating and that can give increased chances of getting cancer. They’ve patented genes even before they know what they do: they’ve taken out speculative patents on treatments based on genes even though no such treatments exist.
Our genes are nature’s software chemical codes honed by millions of years of evolution to fabricate the substances that make us what we are. Scientists’ new knowledge of these codes, and their commonest flaws, promises to make the 21st century an era when some of the deadliest diseases are eradicated. By patenting gene sequences, the claimants argue, they are ensuring they will be able to recover the money they have spent to find them, and gain the financial incentive to work out how to use them to benefit humankind. Not so, argue the critics of gene patenting. For one thing, to claim exclusive rights to commercial exploitation of something everyone is born with is to abuse the patent system, which was set up to reward inventors, not discoverers.
Some genes are more valuable than others. Professor Simon Lovestone of the Institute of Psychiatry in London is one of a group of several dozen scientists around the world about to spark off a new gene hunt when they publish the results of research pinpointing a region of human DNA where a gene contributing to the onset of Alzheimer’s disease is to be found. One “Alzheimer’s” gene, known as ApoE, has been identified, but by itself it is a poor indicator of how likely someone is to get the disease. Patent control over a second Alzheimer’s gene would make reliable advanced diagnosis more likely, and could contribute towards developing a cure. One estimate of the annual market for Alzheimer’s therapy is $160-billion. An Alzheimer’s gene patent, even without a cure, would do wonders for a firm’s share price in the cut-throat world of biotech competition.
Had Lovestone and his collaborators been working for a private firm, they would have held off publishing details of their discovery until they had found the exact location of the gene, recorded its chemical sequence and filed a patent application. This is what the Icelandic firm DeCode did with its recent announcement that it had found a “schizophrenia gene”. By publishing early, Lovestone’s team throw the hunt open to everyone. A big private firm is quite likely to find the gene first, and patent it. If Lovestone et al find it, they may patent it too a “defensive” patent, to keep the gene in the public domain.
“Our academic group will publish as soon as it can, in order that other groups may work on it,” said Lovestone. “Of course it would cause me anguish if another group found the gene and patented it. We want to be the ones to find it because of normal academic competitiveness. If somebody else finds it and then clamps some kind of restriction on it which prevents others working on it, that would make me very unhappy.”
He could see the biotech companies’ point of view: “There is the argument that being able to patent genes encourages firms to spend large amounts of money on developing tests and therapies based on those genes. I don’t know what’s right and what’s wrong, I really don’t.
“I find the patenting of genes anathema, but equally I think it’s absolutely essential that big pharmaceutical companies are involved in this kind of research. It’s probably no longer possible for governments to sponsor this sort of work.”
The patenting of human genes tends to be seen as largely a United States-driven phenomenon, fuelled by idiosyncratic American patent laws, but just as the Cherokee Land Run fades into insignificance compared to European appropriation of colonies, so European firms have become some of the most enthusiastic stakers of claims on human DNA.
Patent applications on no fewer than 36 083 genes and DNA sequences have been filed by a single French firm, Genset. The company is working on drugs linked to two patented genes one associated with prostate cancer, another with obesity.
So far, gene patent holders have trodden cautiously in enforcing their monopolies. They like to maintain, publicly, that they have not actually patented genes only a specific use for them. But in gene patents, the written sequence of the gene’s chemical code, and the description of its function, are usually the only novel things there.
The Utah-based company Myriad Genetics, for instance, has patented two human genes, mutations which make women more susceptible to breast cancer. It has patented these in the context of a test for susceptibility to the disease but the technology to carry out the tests is patented by other companies. What Myriad brings to the table in terms of “novelty” is the gene sequence and nothing more. One patent lawyer likened it to a lock and a key: all the locks are similar, but the key is unique.