If you are a woman, you may have a gene that is linked to breast and ovarian cancer. If you are a man, this fact obviously applies to your mother, and any sisters, daughters, or other female friends or relatives you might have.
But, according to current US law and court decisions, no woman actually owns that gene in her own body. Thus:
“Should corporations have patents on human genes? That’s the question now facing the U.S. Supreme Court which has agreed to hear a lawsuit between the ACLU and Salt Lake company Myriad Genetics. The American Civil Liberties Union says Myriad Genetics has no business owning the patents to two genes linked to hereditary breast and ovarian cancer. ‘How can it be that a company controls genes? How is that possible?,’ said Barbara Brenner, director of Breast Cancer Action. Women’s’ advocates joined 150,000 scientists and the ACLU three years ago in the lawsuit, which has gone back and forth through the courts for years. Now, the U.S. Supreme Court has agreed to hear the case for a second time. In the mid 1990s, the government granted Salt Lake company Myriad Genetics patents on the BRCA 1 and BRCA 2 genes.”
So, unless the Supreme Court intervenes, a discovery can be considered an “invention” and be regarded as the sole property of the “inventor” (or the corporation that financed the “invention”)?
Why did Myriad not patent the test rather than the gene involved in the test? If the answer is that the test is a public domain technique that anyone can use, then we have to enjoy the irony: Myriad is benefiting from someone else’s knowledge without paying for it. But if they could have patented the test and chose, instead, to patent the gene, then they are obviously stifling development. They not only want to forbid anyone from using their test; they also don’t want anyone developing their own test. Anything having to do with the gene becomes off limits because the gene is now the corporation’s “property” since they discovered it.
Is this the way science is supposed to work? When an observatory discovers a new star should they have the right to demand that any other observatory get permission from them to look at it, or to study it to see if it may have planets?
Forget about the monstrosity of pretending that discoveries count as inventions: I think conservatives need to spend some time questioning whether “intellectual property” is real property at all. I notice that Stephen King has to give credit (and pay?) in his novels when one of his characters identifies a popular song on the radio and notice the lyrics. But he also used a scene from one of his favorite novelists in his first published story Carrie and then again in his screenplay Rose Red. But he never was required to pay her estate. Stephen Spielberg’s Poltergeist uses ideas that King had used first and obviously inspired the movie. So should King say that a special girl that ghosts wanted to bring over to their side is his property? I don’t think creativity and development would be possible. We would all be stuck; held back by gatekeepers.
When James Watt invented the steam engine, it needed some basic improvements. But no one was permitted to make those improvements because Watt was granted the patent. The age of steam didn’t happen until after Watt’s patent ran out. (And ironically, Watt couldn’t use the crankshaft to improve his machine because someone else held that patent.) According to Michele Boldrin and David K. Levine in their book, Against Intellectual Monopoly, Watt didn’t even become financially successful until he stopped trying to profit from taking other people to court, and simply began making quality machines in competition with everyone else.
There may be a case to be made for some kind of limited patent time, but that case needs to be argued, not assumed.
And natural discoveries should not be included as “inventions.”