In Defense of Patenting You and Your Family

In Defense of Patenting You and Your Family
by Eugene Prokopenko
How would you feel if I told you that I am the new proud owner of you and your family? That is, that I have been granted a United States patent on the DNA sequence particular to your line of descent because I have identified a unique property of your genetic material. A few cultured cells with your genetic makeup, added to lotion and rubbed on the skin, allow one to look younger, wrinkle-free, and be less susceptible to skin cancer. Of course this does not mean that I have control over yours and your family’s actions – only over the application of your DNA to skin care. If you feel like you may have hit the jackpot, then prepare for another disappointment – you are not entitled to any portion of my profits, nor are you rewarded for having such supple genes.

Under current patent law, living entities are not patentable in their natural state, which means that you cannot patent your own body1. Other requirements for a patent is that the invention or design is novel – no one else made it public; innovative – it can’t be a development which is obvious; and useful – it has to aid a practical human activity. British woman, Donna MacLean found out that she can’t patent her own body when she became the first person to try to patent herself in early 2000. Her patent application was titled “Myself” and her reason for trying to do it was as good as any. “It has taken 30 years of hard labour for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise,” MacLean told the British newspaper “The Guardian.” So Donna and your family will not become wealthy from your respectable DNA, but let’s not discredit our legal system yet. Perhaps the system is accurate after all, and the issues are more complex than they appear at first glance.

No matter where your family is from, the US, Britain, or Kenya, the controversial race of biotech companies to own human DNA is having its affect. For example, imagine another family from a third-world country, let’s say somewhere in Africa, and that bioprospectors from the US have isolated an HIV immunity gene from the father’s saliva. The bioprospectors then develop a revolutionary treatment for AIDS, which costthem millions of dollars to research. They patent their invention for sale in the developed world and pass the treatment to the government of the African nation at a discount, in addition to a monetary “Thank You” sum for the family’s village. However, the father soon notices that the inexpensive treatment he needed for his son, who doesn’t carry the immunity gene, is not available, and the monetary sum he was expecting and hoping to invest in a small coffee plantation is being allocated to a mysterious government project. Subsequently, the bioprospectors discover that the African medicine is being smuggled back to developed nations and sold for a profit at lower than market price. The African family and a few other villagers save up money for the available but expensive treatment, but they now have less money for farming and their poverty is propagated.

Such are the problems of dealing with third-world governments – and in some nations there isn’t a government at all. The enormous population of Africa permits much diversion money to be made if the supply of medicine is great enough to account for everyone on the continent3. The leaders of biotechnology firms are not malicious or evil people who wish to see death, quite the contrary, but where is the incentive to be charitable when the gifts fall in the hands of the few, and profits meant for future research and better medicine are being undermined? If the bioprospectors don’t patent their invention, then they forfeit revenue to other firms who may not even have attempted to research an AIDS treatment.

It is a common emotional response to view the US as a greedy profit getter that does not care about the rest of the world. However, the majority of health care research is done in the US and its citizens bear most of the cost of improving the world’s health care, while other nations usually simply adopt American therapies after they have been developed1. At least the African family now has a chance.

Now let’s return and solve the issue of rewarding you and your American family for improving the world’s skincare. There was a famous case in 1976 involving a US citizen by the name of John Moore who underwent surgery at the UCLA Medical Center. Despite a pre-operative consent form which stated that his cancerous spleen would be destroyed after removal, his doctor saved, cultured, and patented some cells that produced a protein applicable to cancer therapy. The Swiss pharmaceutical company Sandoz bought exclusive rights for the commercial use of the patent for an alleged $15 million. Although Moore felt violated, the California Supreme Court decided that he was not entitled to any rights to his cells after they had been removed from his body.

“Labor equals property” is a quote from Locke that also upholds the Court’s decision. It did not take John Moore conscious labor to grow cells in his body. Therefore, it does not make sense to include the body as part of property rights – civil rights, yes, but not property. Also, consider the complications that would arise from making the body a part of property rights. If the originator of a cell line were to be monetarily rewarded, your friend might encourage companies to use his or her body as a “biofarm,” to have DNA from cells in an organ altered until the cells are marketable, with a lottery size portion of profits going to your friend as the original “owner” of the material. The income would be great and the haphazard health risks could be greater. The adoption of such a practice would begin a new business model with human factories1, and could reach the dismalness and desperation of today’s black market for organs2. There is also the lesser complication of attempting to identify the origin of a cell line when a study is based on samples of thousands of anonymous donors, such as blood samples.

You, your family, and the African family across the Atlantic were born with a DNA goldmine, and were the closest to it from the gecko. But you needed knowledge of advanced lab techniques to uncover the mine, just like people who lived on a real goldmine needed specialized equipment to tap their wealth, and they may have sold their property without realizing what they had. To them and to you, tough luck.

1. Prof. Robert Merges, Affiliated Professor, Haas Business/Public Policy Group, University of California, Berkeley.

2. Prof. Ignacio Chapela, Assistant Professor, Department of Environmental Science, Policy, and Management, University of California, Berkeley.

3. Prof. Robert Tjian, Howard Hughes Investigator and Professor of Biochemistry and Molecular Biology, University of California, Berkeley

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