With a contentious case over patenting human DNA sequences back in court, we look to the history of radio for a creative approach to domain over the building blocks of people.
The issue of whether or not we can patent people -- or, at least, the genetic sequences that comprise them -- returned to federal court last week. This comes after two lower courts gave conflicting decisions: one striking down gene patents completely, followed by a higher court partially upholding them. Now an even higher appeals court is trying to sort things out.
The question before the U.S. Court of Appeals for the Federal Circuit is whether a company, university, or individual can patent sequences of DNA. These are the codes that influence everything from disease risk to the color of your eyes. Are these lines sub-microscopic Ts, Cs, Gs, and As coiled inside of our cells naturally occurring and therefore unpatentable?
On the "let's patent" side is Myriad Genetics, which claims patents on several genes that are associated with an increased risk for breast cancer. The health-care company is supported by most of the bio-pharma industry. On the opposing side are the American Civil Liberties Union, several research institutions and individual researchers, and the Obama administration (which filed a friend-of-the-court brief supporting the anti-patent position).
At stake are thousands of patents already issued over the past 20 years by the U.S. Patent and Trademark Office. Biomed companies insist that patents are vital to developing new drugs and diagnostic tests. Without owning genes associated with disease and other traits, they say, no one will invest the millions needed to create new products.
This represents some narrow thinking, however, by the pro-patent people. Indeed, efforts to fit the ownership of DNA into a system established over two centuries ago -- long before molecular entities like genes were even dreamed about -- are like trying to put a round peg in a square hole.
What's needed are more creative solutions to the need for companies to have some exclusivity to bits and pieces of DNA, while acknowledging that genes are in fact naturally occurring.
The ACLU contends that Myriad has made it difficult for outside researchers to study the breast cancer genes, or for patients to get second opinions. The company is also allowed under patent law to charge what they want, pricing their test at $3,000 despite dramatic reductions in recent years in the costs of sequencing DNA.
In a 2010 column I wrote for Fortune, when the original case was being argued before the lower court, I suggested one out-of-the-box idea. It was based on a remarkably similar case that occurred over a century ago when scientists and inventors stumbled on the existence of another spectrum that existed in nature but had been unknown until discovered by scientists.
This spectrum is the pattern of electromagnetic waves that provide us with frequencies for everything from text messages and YouTube videos to the latest sounds of Adele on the radio.