Should your genes be open source?

The arguments should be familiar to everyone involved in controversies involving software patents and open source. Are patent rights on genes necessary to innovation, or are they in fact a hindrance?

On the edge of a revolution in genetic science, and the business of genetic testing, are patient advocates throwing a wrench in the works by fighting the patenting of genes?

In the wake of a lawsuit by Genae Girard against Myriad Genetics, which has patent rights on genes implicated in breast cancer, the question of genetic patent rights is being asked with new intensity.

USA Today has editorialized in favor of Girard, writing that such patents raise medical costs and reduce innovation.

Brian Ahier writes at his Healthcare IT blog that about 3 million genome-related patents are now on file, suggesting this could slow the development of tests and cures. So far the National Research Council disagrees. A draft report from the National Insitutes of Health indicates 20% of the human genome is already patented.

Generally, those in the medical industries have opposed patent reforms, while those in computing have favored it, because most medical patents offer a way of doing something and don't put roadblocks in favor of new discoveries.

In this case, however, patent rights may be real roadblocks. As genetic tests become more complex, with increased numbers of sequences checked in each test, patent rights on specific genomes can easily prevent the creation of new tests.

Are we, in this case, not patenting answers, but patenting the questions needed to find such answers?

Xavier Beccera, vice chair of the House Democratic caucus, thinks it's time for action. He has introduced H.R. 977, which would end the practice of gene patenting.

The issue of genetic patenting is also being examined in Australia, where a Senate committee will soon hold public hearings on the question of genetic patents. This came after Genetic Technologies Ltd., which licensed the Australian rights to Myriad's patent, send lawyer letters to everyone conducting tests for the BRCA1 and BRCA2 genes, telling them to cease and desist.

The arguments should be familiar to everyone involved in controversies involving software patents and open source. Are patent rights on genes necessary to innovation, or are they in fact a hindrance?

It is past time to ask the question and search for real answers.[poll=30]

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