Entering the Gene Pool

Collaborative patenting and the public/private divide

| March 9, 2006

Wired reported in January that '[o]ne-fifth of your DNA is now owned (as in patented) by someone else.' Though the promised land of gene therapy has yet to appear, the companies that are gobbling up gene patents are banking that it soon will -- with huge payoffs. But many worry that the morass of patents will ultimately impede progress in public health.

The Human Genome Project was devised as a publicly funded, information-sharing initiative. But, according to Misha Angrist and Robert M. Cook-Deegan, writing in The New Atlantis , even from the start, the initiative has been in a tenuous position between two driving forces: publicly funded collaboration and privately funded investment.

The lines between these two forces are not as clear as one might expect. Angrist and Cook-Deegan cite an example of a private company acting with an apparently public-minded ethos. In that instance, 'big pharma' paid for public research in order to beat smaller companies to the punch, ensuring that the results of the research remained unpatented and in the public sphere. Surprisingly, the possibility of gene patents actually fostered public-interest research.

But such moments appear rare in the field of gene research. '[T]he patent system vis-?-vis genes seems broken,' Angrist and Cook-Deegan observe. Not least of the problems is that -- according to one federal precedent -- in order to do research, a company or institution must pay licensing fees to not just one but many patent holders. That's because many of the gene patents granted are for small gene sections, and research will often cover many such sections.

In such a massive and complicated field that includes genome mapping and gene therapy, collaboration is key. In a seemingly preemptive move, the United States Patent and Trademark Office (USPTO) outlined a model known as 'patent pools' before the Human Genome Project was even completed. The office's recommendation for patent pools in biotechnology -- in which individual patent holders group together and license their patents as a bloc, often to others within the pool -- highlights what the USPTO sees as the benefits of patent pools like reduced transaction costs and less infringement litigation.

East Carolina University Medical Humanities Professor David B. Resnik, in a paper published in The Journal of Philosophy, Science, and Law , concurs, claiming that 'a biotechnology patent pool could encourage the type of public-private cooperation that is necessary to research and innovation in biotechnology and biomedicine.' At this point, it's as if the different companies in the gene industry are each holding a piece of a puzzle: Alone they can get nowhere, but if they all share their pieces with everyone else, a better picture starts to emerge. Though questions remain over whether biotech companies will see patent pools as economically attractive, some, like Resnik, are holding out hope that a more collaborative approach to biotechnology will win the day.