Last night the wife said, you don't take nothing with you but your soul!
John Lennon sure got it right in his “Ballad of John and Yoko.” The news from the journal Science is that 20 percent of the human genome is now owned by private companies and universities. By the time many of us die, there’s a good chance that everything but our soul — and perhaps our appendix and other “useless” genomic bits — will be owned by Big Pharma, biotech firms, Harvard University and other well-known protectors of the public good.
Documentation about the current state of the genomic land grab appeared in the October 14 issue of Science (registered users only, but see this secondhand account). The report, “Intellectual Property Landscape of the Human Genome,” by Kyle Jensen and Fiona Murray, correlates specific patents with specific segments of the human genome for the first time. It seems that 20 percent of the nearly 24,000 human genes thought to exist, or more than 4,000 genes, are covered by U.S. patents. Private firms own about 63 percent of the patented genes; universities own about 28 percent. Incyte, a drug firm based in Palo Alto, is the top patent-holder with patents for 2,000 human genes. (Technically, patentees don’t own the genes proper, just the purposes stipulated in the patents — but control is control.)
The idea behind genomic patents is that they provide biotech investors with a needed incentive to develop new diagnostic tests or new drug treatments. Why go to all the trouble of sponsoring expensive, sophisticated research at the cutting edge of science if you can’t make money off of it? That seems logical enough.
Let’s leave aside the fundamental ethical issue of whether components of human life ought to be treated as private property (shades of the Fourteenth Amendment and its ban on slavery). It bears remembering that there are many ways to make money in this area without having a monopoly over an entire gene sequence. Record labels can’t own musical scales; fashion houses can’t own the minidress; retailers can’t own common words like polo, virgin and entrepreneur (oops, scratch that last claim).
The point is that even industry needs a robust and open public domain in order to innovate. That’s a key reason why so many software giants are turning to open source software, and why IBM has made dozens of its software patents available to competitors (while positioning itself to profit in other ways). The wider the participation in a tech sector, the more innovative it is likely to become. But this requires a commons. One reason that the biotech and computer revolutions took off in the first place was because there was a huge pool of shared knowledge — much of it seeded by the U.S. Government — that everyone could access and use.
Now broad genomic patents are privatizing many of the best tools in the workshop before anyone really knows how they might be best used. Talk about sabotaging the future!
The Science report says that a great deal of patenting activity is focussed on so-called “hot spots” — areas of the genome that are thought to be biologically important. There are as many as 20 patent claims on gene sequences that might be relevant to cancer, Alzheimer’s and other high-profile diseases. Essentially, the first claimant gets to shut out follow-on innovators. We have no assurance that the first company to develop medical tools for any particular gene sequence will develop the best one. Yet the patent (or fear of litigation) will restrict others from “poaching” on that research field for the duration of the patent.
Not so long ago, the norm in academic science was to share and collaborate to learn how the body works, and what medical applications could be developed. That ethic persists, to be sure, but now we are seeing the growth of a new ownership regime that prizes secrecy, broad property rights, and obstruction of future innovation and competition. Universities that purport to be serving the public good will have every incentive to undercut “competitors,” academic or commercial, who might develop a better, cheaper version of their patented product. And then there’s the “rights clearances” problem that would make Kafka proud. All sorts of research will never occur in the first place because the administrative and financial barriers to clearing the rights will be too daunting.
There are many reasons to be alarmed at this latest news from Science magazine. It’s further evidence that the market is not the only way, or even necessarily the best way, to advance the public good. Fortunately, the open-source biology movement is starting to find its legs.