Institute for Systems Biology's General Counsel, Cathryn Campbell, led a discussion on Myriad Genetic's BRCA gene patents. The ACLU and the Public Patent Foundation sued Myriad and Judge Robert Sweet of the Federal Court of the Southern District of New York ruled that "isolated DNA", which "represents the physical embodiment of biological information" is "unpatentable subject matter". Myriad will, of course, appeal.
Sadly, even if the ruling doesn't get overturned on appeal, the legal technicalities are such that rewording the patent claims might be enough to achieve the same effect. This particular ruling which hinged on whether the gene was a "product of nature" which is unpatentable or has been sufficiently transformed in the process of isolating the gene to warrant patent protection. It's encouraging to note that the judge recognized the unique information-carrying role of DNA.
Maybe a better question than whether a gene should be patentable is how do we encourage and reward invention and innovation such that we maximize the benefit to society? The exclusionary nature of patents (and copyrights) imposes a cost. What we get in exchange is a market mechanism to put a price on a given invention. Grants and prizes are another mechanism which avoid the costs of exclusion, but have other disadvantages. Mainly, whoever grants the award needs to be good at "picking winners", otherwise a money gets wasted.
Joseph Stiglitz and John Sulston, both nobel prize winners, write in a WSJ article titled The Case Against Gene Patents:
...we believe the patenting of human genes is wrong as a matter of science and as a matter of economics.
Proponents of gene patents argue that private companies will not engage in genetic research unless they have the economic incentives created by the patent system. We believe that a deeper understanding of the economics and science of innovation leads to exactly the opposite conclusion.
The Economist's Genes and patents: More harm than good?
In addition, the studies published this week suggest that granting exclusive rights over genes may be doing more harm than good. At the request of the American government, a team of researchers from Duke University, led by Robert Cook-Deegan, spent two years examining the country’s markets for genetic tests for diseases ranging from colon cancer to cystic fibrosis. The chief question they sought to answer is whether the intellectual property arrangements involved helped or hindered public access to those tests.
Their conclusion? That the rules hinder access.
What If The Very Theory That Underlies Why We Need Patents Is Wrong? cites Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation, Baldwin and Von Hippel, on the rise of open and collaborative innovation and the fact that patents work against this type of innovation.
This result hinges on the fact that the innovative design itself is a non-rival good: each participant in a collaborative effort gets the value of the whole design, but incurs only a fraction of the design cost.
There's a really clear explanation of the economics of intellectual property in the first lecture or two of the UW's Information Technology & Public Policy, by Steve Maurer of UC Berkeley.
Lawrence Lessig's Coding Against Corruption explains the flaws in the legislative process that have gotten us into this predicament.
