Patents are tools for economic advancement that are supposed to contribute to the enrichment of society. Society benefits from the wide availability of new and useful goods, services, and technical information, that derive from inventive activity.
DNA and the economics of patents
Economic activity depends on the production, circulation and further development of such goods, services and information. In pursuit of these aims, inventors protect their inventions through a system of property rights, the patent system. Once patents have been acquired, the owners seek to exploit their inventions in the marketplace. The possibility of commercial benefit encourages innovation and investment, especially in fields that require a lot of research and development, such as biotechnology and pharmaceuticals. Without such a period of legal exclusivity, such high-risk investment, it is argued, would not take place. But after a limited time, these legal rights are extinguished and the unprotected inventions are freely available for others to use and improve upon.
Patents can be exploited in various ways. For example, patents can be sold or licensed even before a product based on the invention has been developed. More advantageously, they can be converted into market monopolies if the corresponding invention results in a commercial product, that is neither protected by more than one patent, nor in competition with substitute products on the market.
The second benefit is that information about the invention as revealed in the patent and by the invention itself is diffused throughout the economy. In this context, it is helpful to conceive of a patent as a contract between the holder and the government on behalf of the citizenry. The holder receives an exclusive time-limited right over the invention in exchange for the payment of fees and, more importantly, for disclosing the invention for others to study. Without a patent, the inventor would have no incentive to disclose the invention. This would be a loss for society if such lack of protection left the inventor with no alternative but to maintain maximum secrecy.
One reason that patents are so controversial is that the intellectual property incentive, as far as it actually works, functions by restricting use by others of the protected invention for a certain period. Yet follow-on innovation by others is more likely to happen if use is not restricted. Thus a balance between private control over the use of technical information and its diffusion needs to be struck. In genetics, it is often argued that the patenting of deoxyribonucleic acid (DNA) on the basis of the disclosure of the sequence and of one discovered function or use is overprotective, thereby hindering follow-on innovation.
The view of most businesses and patent practitioners is that DNA is a chemical, no more or less. As such, it should be possible to claim a disclosed DNA sequence in the same way as a newly characterized chemical can be claimed for all known and yet-to-be-discovered uses. For 100 years, isolated and purified chemicals "manufactured" in living things including humans have been patented in Europe and North America. For example, adrenaline was first patented in 1903, and insulin in 1923. Shortly after the Second World War, Merck was granted patents on two products extracted from a microorganism, the antibiotic streptomycin and vitamin [B.sub.12].
Legal and scientific objections to the patenting of DNA
At first glance, this DNA-as-a-chemical position is persuasive. Nonetheless, DNA is undeniably a product of nature. Neither describing its composition and naming a function, nor editing the non-protein-coding nucleotides and cloning it, can turn the discovery of a piece of nature into a human invention.
Furthermore, the state of the art in molecular biology is rapidly changing. If the recent past is even a modest guide to the near future, much of what we assume to be true today will seem pathetically misguided in a few years. …