James Evans, MD, PhD is the Bryson Distinguished Professor of Genetics and Medicine at the University of North Carolina Chapel Hill School of Medicine. He was a member of the advisory committee to the U.S. Secretary of Health and Human Services on Genetics, Health and Society and spearheaded that committee's task force investigating gene patenting and its effect on patient care. He also filed an amicus brief in the ACLU's challenge to gene patents.
As we head toward Supreme Court review of whether genes can be patented, it is important to remember a simple, but often-overlooked fact about patents and the protection of intellectual property. The intent of the patent system is to achieve a social good—not to stimulate commerce.
Patents are enshrined in the U.S. Constitution for a single purpose: "to promote the progress of science and useful arts." It is indeed the case that one mechanism by which such progress is secured, derives—in part—from appealing to the desire for profit (Lincoln's famous "fuel of interest" added to the "fire of genius"). But it should not be forgotten that the express purpose of granting patents is to advance a social good: the free dissemination of information that then leads to progress.
When it comes to gene patents, that social good has been clearly damaged. As documented in the report of the Secretary's Advisory Committee on Genetics, Health and Society, the interest of patients and the public has been hurt by the exclusivity generated through gene patents.
Consider what has happened time and time again when gene patents and exclusive licenses have been enforced (e.g., genes connected to hereditary breast cancer or spinal cerebellar ataxia)—numerous labs that had no trouble developing diagnostic tests were shut down, leaving patients and providers with only a single (often substandard and unaffordable) option for testing. Yet, in parallel situations where exclusive patent rights were not a factor (e.g., genes connected to hereditary predisposition to colon cancer or Huntington disease), numerous labs thrive—and importantly, compete on the basis of service, quality and innovation, benefitting all.
The protection of intellectual property is critical to the progress our society has made in fields ranging from the arts to physics. But too much protection is just as damaging to society as too little.
If the Supreme Court overturns the current status quo this summer and renders genes ineligible for patenting, a few will suffer—namely the handful of companies who have sought exclusivity over genes and other naturally occurring substances, simply to promote a business model. But many more will benefit. In the spirit of our founders' original intent, progress in biomedical research will be enabled; patients and their providers will have a choice as to where to obtain diagnostic studies and the resulting competition will continue to drive quality and innovation, benefitting us all.