The biotech industry’s arguments in favor of patenting life forms fall into
two main categories, both varieties of a claim that the patent monopoly
provides fiscal incentives necessary for “progress.” These are: (1)
business is risky and without the promise of patentability the industry
will not be able to attract the necessary capital for research,
development, and production; and (2) without patents, society would have to
forego new drugs and lives would be lost and unnecessary pain prolonged.
Given these seemingly plausible claims, why did the American Medical
Association conclude last month that “There is no empirical evidence to
support the claim that the patent system is necessary to stimulate
innovation”?

Other societies have more explicit public policy examination of the
patentability of life forms and products. For example, the patent laws in
Brazil, India, and Argentina forbid the patenting of pharmaceuticals on the
grounds that drugs are of such great importance that no one should have the
right to monopolize them. Columbian researcher Dr. Manuel Patarroyo
recently gave the World Health Organization exclusive royalty-free rights
on an antimalaria vaccine he developed; “We wanted to do this for the
benefit of humanity,” he explained. The European viewpoint is greatly
influenced by the Napoleanic concept that denies patentability to subject
matter which is contrary to ordre publique (fundamental moral precepts).

First of all, we have to understand that the biotechnology industry has
been enormously subsidized by government on all levels, even without
considering the existence of the patent monopoly as an additional form of
support. Almost all of the basic genetic engineering research has been
supported by the Federal government, either directly (for example through
grants from the National Institutes of Health) or indirectly (by allowing
tax write offs for private donations for this purpose). Most of the
laboratories on university campuses (where almost all the original work was
done) were built with Federal funds. Most of the younger researches were
supported on scholarships and fellowships by the NIH. Since we, the
citizens, have made the investment which produced this new technology, why
aren’t the results considered public property to be freely usable by
anyone? Even the Agricultural Biotechnology Council (an
industry/government/university consortium) has noted that a public
ownership mechanism — which has been used occasionally by the government
— has the advantage of stimulating the innovative activity without granting
anyone a right to restrict its diffusion to others, as do grants of
monopoly rights like patents.” Of course, in an era when the notion of
privatization is running amuck (resulting in even the suggestion that some
of our National Parks should be sold off to entrepreneurs), advancing this
argument may seem foolhearty; nonetheless, it is eminently sensible and
just.

A second consideration is that a great deal of the work occurring in the
private sector consists of relatively small modifications to the enormous
body of knowledge created by public funding or developed communally over
the millennia. Shortly after the Supreme Court decision, Dr. Chakrabarty
told People magazine “I simply shuffled genes, changing bacteria that
already existed. It’s like teaching your pet cat a few new tricks.” And
the grand Jeffersonian scheme that knowledge would be widely shared and
made available to all (to provide the basis of yet additional inventions)
has in fact been thwarted by the modern patent system in which the talents
of the good patent attorney are enlisted in order to disclose as little as
possible in the body of the patent document. Why let your competitors
know exactly what you are doing if you can get away with not telling them?
The free exchange of scientific information in biology department colloquia
and scientific meetings has been substantially affected by a reluctance to
talk about one’s work and by delays in publications and lectures, until the
patent application is filed; academic colleagues have been transformed into
industrial competitors. In the words of the NABC, “The openness and free
flow of ideas so important to the development of knowledge is slowed by
this atmosphere of safeguarding information in the hopes of making it
proprietary.”

According to a representative of Immunex, “If you take patents away, you
take biotechnology away, and people will die.” In regard to assuring new
drugs and life saving wonders, we should realize that, over the last
century or so, twice as much of the increase in life expectancy has been
due to the mundane and unglamorous work of civil engineers (drinking water
systems, sewage purification, etc.) than from doctors and the medical
establishment, no less molecular geneticists. If saving lives were truly
the goal we were seeking, this society would have put investment into
reducing infant mortality instead of developing genetic engineering;
simple cost benefit analysis would show that we would get a larger saving
of life for each dollar spent.

The patenting of a drug may, in fact, restrict the ability of ordinary
people to gain access to medication because the price may be artificially
inflated due to the monopoly. This was clearly the case with AZT, the
first anti-HIV drug put on the market (developed, by the way, with Federal
funds by the National Cancer Institute but marketed under a special statute
giving patent rights to private distributors).

Finally, much of this discussion collapses into fundamental questions of
ethics. Is a gene part of “life” or merely a bit of chemical? Do we care
whether the natural world is being desacralized by auctioning off intricate
organic interrelationships to the highest bidder? This spring, American
leaders of many religious denominations — Protestant, Catholic, Jewish,
Muslim, and Buddhist — gave voice to the sentiment which most of their
congregants know intuitively: it is unethical to patent life forms.

Life patenting is not an issue which pits progressives against
conservatives. Rather, elements of both the left and the right are raising
concerns about the directions which liberal technocrats (in the Patent
Office, among venture capitalists, and on campuses) are taking society.
Many voices are increasingly suggesting that it is time to step back and
evaluate what is happening.

A recent essay in the New York Times marking the passing of Dr. Jonas Salk
discussed the conquest of polio and noted that the March of Dimes
prohibited patenting or receipt of royalties on the results of its research
projects. The TV commentator, Edward R. Murrow, in an interview occasioned
by the immense public excitement created by the trials of the vaccine,
asked Salk who would control the new pharmaceutical. Salk replied “Well,
the people, I would say. There is no patent. Could you patent the sun?”


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