Gene Patents: Impact on Innovation and Society

For several decades, patents have been issued for the genes of various life forms including plants, animals, and segments of human DNA. Typically, gene patent holders are researchers in federal organizations, colleges, and companies; they often collect patents as a means for protecting their investment in research. The U.S. Patent and Trademark Office allows for genes to be protected as intellectual property with the intention of encouraging research and innovation, just as with any patent. However, gene patents have proliferated while leaving fundamental questions unanswered: do gene patents truly nourish innovation as other patents do, and what are their implications on society and on the lifeforms whose genes are subject to patenting? With further investigation, their negative impact will become apparent.

It is frequently argued that genetic patents are the root cause of innovation in research and development (R&D). Particularly, biotechnology companies assert that patents allow them to conduct innovative research by guaranteeing market control and royalties to the company, which reduces the overall risk of investing time and resources into costly research. Without

the opportunity to patent these genes, argue the companies, the research itself would not exist.
While patents are in fact an incentive for R&D generally, “the actual evidence on whether patents impede innovation or inventiveness in biomedicine is, in a word, ambiguous. Yet firms clearly tend to avoid research projects for which there are many existing patents” (Kaplan). There is no way to measure the difference between the amount of innovation that happens as a result of genetic patents and that which would happen in their absence. However, there are some clear cases in which patents create barriers which prevent non-patent holders from conducting beneficial research for society:
The anticommons problem (a situation in which researchers are unable to obtain a multitude of permissions for the use of chemicals, processes, and devices) prevented a group of about 100 academic biologists from building a worldwide human mutations database. The biologists tried to trade their data for corporate support of the database. Although they received an offer of $2.3 million, a deadlock occurred because most members of the group could not afford the information costs needed to reach a decision—a prediction of the anticommons. (Kaplan)
This is an example of the anticommons problem, created by the proliferation of patents. The cost of acquiring the rights for patented material is so prohibitive, that it prevents researchers from purchasing the rights entirely. Anticommons behavior prevents research by requiring the permission of the patent-holder to use dozens of patented methods, devices and discoveries in order to conduct an experiment. It becomes significantly expensive to obtain all the permissions, and in some cases the rights to use one patent conflict with another necessary patent, deadlocking research and effectively preventing it altogether.
The question of innovation growth or decay remains unanswered in the case of gene patents. There are clear borderline cases, such as the case of anticommons, in which patents have stifled innovation and prevented creative researchers from pursuing their ideas. However, the actual measure of the impact is, again, indeterminate. Innovation aside, there is much more to be questioned about gene patents. Specifically, how else do they impact society?
In the case of human genes, the proliferation of genetic patents has been shown to harm medical freedom and safety by giving only the patent holders the rights to provide services involving their patented gene. One example is the case of Myriad Genetics. Myriad Genetics, a large biotechnology firm, owned the patents for isolated human DNA sequences BRCA1 and BRCA2, which are used to test for breast and ovarian cancer. Since 1990, Myriad’s ownership of the patents has positioned the company as “the only company in the U.S. permitted to conduct blood tests that can detect mutations in the BRCA1 and BRCA2 genes” (Chatila, Razanne).
This has enabled Myriad to monopolistically control testing performed with this gene, and they have leveraged this control to charge unfair prices for the use of the patents at the expense of the freedom that patients should have over their health. However, this case of monopolistic control is not limited to human genes: it extends to patents in agriculture.
Monsanto, the largest agricultural company in the word, owns numerous patents on genetically modified and developed seeds. They patent their seeds primarily to restrict the use of the seeds by farmers. Usage rights associated with these seeds prevent farmers from replanting seeds which have grown from a crop of Monsanto seed, which results in monopolistic control by Monsanto over the seed market:
The agrochemical industry claims that its seed innovation has provided farmers more choices. Yet the market concentration of 10 agrochemical companies (with Monsanto in particular) owning about two-thirds of global commercial seed for major crops has narrowed the choice of seeds for farmers and resulted in higher seed prices. Over an 11-year period, the cost per acre of planting soybeans has risen a dramatic 325%. (Kimbrell, George, and Debbie Barker)
Farmers are required to repurchase seeds from the company, instead of regrowing seeds obtained from previous generations of plants as farmers have done for centuries. This drives up the cost of planting crops and creates a seed market in which only Monsanto and similar seed producers stand to benefit.
However, the implications of gene patents are deeper than mere monopolistic control over human medicine and seed markets. Ultimately, how do gene patents pose to threaten the very forms of life in question? To answer this question it is helpful to understand how genes affect living things. Genes encode information which living things use to carry out their biological processes. Genes determine everything from how cells reproduce to which body parts animals develop; the nature of life is determined by genes. When we allow people to claim the usage rights to genes and genetic materials such as seeds and animals, we effectively give them rights over the use of fundamental aspects of nature. To illustrate this problem, we may consider the case of Oncomouse, a genetically modified mouse created at Harvard.
Oncomouse was developed through gene manipulation; researchers added additional encoding to its DNA intending to create a mouse which necessarily develops cancer.

Oncomouse is used to study the effects of cancer in mammals and develop treatments for the disease. However, the patent has been rejected numerous times in Europe and Canada, on the grounds that it would restrict critical research in cancer treatment to deny other researchers access to such a powerful research tool. Domestically, Harvard alone stands to benefit from this patent; as so many patents do, it poses to prevent innovation in research, specifically by preventing researchers from using second generation mice. This is a fundamental issue of gene patenting: self replicating organisms effectively infringe patent law by

reproducing.
Gene patents may be intended to promote innovation in biotechnology. However, they serve to restrict medical and personal freedom at great cost to society, and do in fact prevent some innovation from taking place. Whether the innovation that is lost because of genetic patents is greater than the innovation gained cannot be easily ascertained. However, the costs to personal freedom, medical freedom, the agricultural business, the inability to enforce usage rights, and the easily manipulated legal confusion make these patents more dangerous than they are worth.
Moreover, all forms of life, whether animal, plant, or human, reproduce: this is a fundamental process of life. Biologically, life has the fundamental intent to reproduce. Plants have the goal of spreading their seed into the environment to create new generations of the plant, mice have the goal of reproducing to create new generations of mice, and humans have the goal of reproducing to create new generations of people. The restrictions of usage rights to which genetically modified organisms are subject is dangerous because life finds a way to reproduce itself, thereby violating patent law. Usage rights are unnatural in the context of living things, and could never be adequately enforced.