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Patenting Life: A Step back from Progress

Contributor Si Cheng Dai


Courtesy of NYU Law

During a fated 1955 television interview, Jonas Salk, the inventor of the monumental polio vaccine, was asked the simple question, “Who owns the patent on this vaccine?” Mr. Salk replied with a simple answer: “Well, the people, I would say. There is no patent. Could you patent the sun?”


A patent can be defined as a government license that grants the sole right for the manufacture, use and selling of a certain invention. Because it’s designed to give credit to inventors in the form of a monopoly, it can incentivize innovation if employed correctly. However, it can also stagnate other companies’ creativity and deprive the consumer of quality products because of fear of patent violations.


The contentious debate over private companies’ ability to patent genetic-related material ceases to end. However, the answer is clear: these corporations should not be able to patent genes or life forms.


Patenting life is an infringement of law in certain contexts. The term “oncomouse” should ring a bell to those who’ve endured Professor Haffie’s biology lectures, as he often mentions the little critter. Well, in the landmark 2002 Harvard College v Canada case, this genetically modified mouse, engineered to be susceptible to breast tumours and other tumours, could not be patented. Canadian patent law forbids the ownership of a discovery of nature. So as a result, the Federal Court of Canada, seeing the oncomouse as “a marriage between nature and human intervention,” denied the patent.


The ineligibility for natural phenomena to be patented is also why BRCA1 and BRCA2 gene patents (the markers for breast and ovarian cancer) were terminated in a 2013 U.S. Supreme Court decision.


Yes, patented life forms are still out and about. Yet both Canadian and American courts have found that the process of snipping a part of DNA or introducing a certain gene to an organism should not allow one to own that DNA fragment or that altered organism, in many cases.


Still, how detrimental are these patents that we should deny ownership of scientists’ innovations? You might be surprised.


Patents can place financial burden on consumers. Before the precedent-setting court judgment, only the American biotechnology company Myriad Genetics was permitted to test individuals for BRCA1 and BRCA2 gene mutations because of its patents, and did so for upwards of $3,000. And, even though a mutation in the BRCA1 gene affirms a 65% chance of developing breast cancer by the age of 70, the exorbitant cost dissuaded individuals at risk from taking the test.


People at risk for a life-threatening illness deserve the opportunity to take precautionary measures — they shouldn’t be stymied by a business’s price tag. In fact, after the U.S. Supreme Court decided to terminate the patents, competing companies began to provide cheaper alternatives, as a recent $249 breast cancer screening test by Colour Genetics demonstrates.


Monopolies not only create unequal access; they also decrease the incentive for companies to innovate. U.S.-based company Transgenomic owns Canadian patents to five genes with mutations linked to long QT syndrome (LQTS), a heart condition characterized by rapid heartbeats. These patents resulted in the Children’s Hospital of Eastern Ontario (CHEO) being forced to test patients with LQTS for double the price (which added cost to Canada’s health care system) and halt the hospital’s use of novel genetic testing.


CHEO challenged the system and won in 2016. As a result, Transgenomic allowed its LQTS test to be used by other Canadian hospitals for non-profit purposes, finally alleviating the issues the patent created.


Although CHEO was successful in loosening the stranglehold on LQTS testing, most companies still face the risk of patent infringement when experimenting with patented genes. These restrictions can be accompanied by significant ramifications; for patents on viruses like SARS and Hepatitis C, companies also hesitated to perform research, even when time was of the essence. As leading institutions become indolent, those corporations that still want to innovate will just have to stand by and watch.


Currently, there is no Canadian law that specifically prohibits the patenting of augmented genes or life forms; however, one should be implemented, as recurring problems consistently prove Jonas Salk correct — indeed, the products of nature and human ingenuity should be accessible to the people.