When we think of patent law, we often think of technology, engineering, and intellectual property. Rarely do we think of living organisms. In 1980, however, the Supreme Court ruled that man-made organisms could be patented by the scientists who created them. This includes everything from cells to plants, animals or even genes. Since then, the United States Patent Office has granted 40,000 patents for genes alone. Genetic patenting is the subject of Harriet Washington’s new book, Deadly Monopolies.
The book explores not just the history of biotech patenting, but also the ethics involved. Rather than abstractly ruminating about patenting, Washington depicts its concrete consequences. She argues that companies often file biological patents because they are mostly interested in pleasing share holders rather than meeting the needs of patients.
Some complaints will be familiar to those who follow IP issues closely, such as restrictive patents preventing competition and raising prices at the consumer level. Others, however, sound like something out of a dystopian science fiction novel, such as patenting genes and tissue samples culled from clients without their full knowledge and consent. For example, in California, a culture from a patient’s spleen was patented as a treatment for a form of leukemia. The physician culled the sample by telling a patient to report to his office for testing related to his own cancer. The Supreme Court ruled that the patient had no right to any revenues generated from his discarded body parts.
Another story with a science fiction quality, but a happier ending, is that of a hemophiliac with medically valuable antibodies. After a doctor informed him of his blood’s utility, the man began selling his blood. However, he also offered to give samples of his blood away to noncommercial entities seeking to develop products for the betterment of mankind.
Before the above ruling, universities rarely patented their discoveries. Jonas Salk and his polio vaccine were the model. He famously said “Can you patent the sun?” when asked who owned the patent to his discovery. Since the 1980 Supreme Court ruling, however, the line between public good and private profit has been blurred, if not totally obliterated. In addition to the Supreme Court ruling, the Bayh-Dole Act allowed universities greater control over their IP. This moved the environment on university campuses from one of open communication and research for the greater good into a place where profit became as much of a motive as at any Fortune 500 corporation. Declining public education budgets don’t help matters, either.
The implications for health care are far-reaching and significant. Living in a country where health care is operated on a for-profit basis has been roundly criticized. We now, however, live in an era where medical research is conducted on the same basis. This creates market pressure on researchers and physicians to see patients as potential goldmines for the next big thing, rather than people in need of treatment. Further, there’s something rather diabolical about the idea that a company can claim part of your body as intellectual property. This phenomenon creates another pressure, one that sounds silly at first but might become increasingly common in a world where people seeking treatment are seen as sources of research: Patients who avoid getting treated for fear of having parts of their body patented.