Should Genes Be Patented?

Some philosophical questions relevant to patenting DNA are: Should intellectual knowledge regarding natural processes in principle be patentable? Does witnessing an existing natural phenomenon in itself warrant patent protection for the witness? Should an astronomer be able to patent every new galaxy he or she discovers? Someone like Justice Douglas would answer no. Writing for the majority in the 1948 U.S. Supreme Court case of Funk Brothers Seed Co. v. Kalo Inoculant Co., he wrote: “Patents cannot issue for the discovery of the phenomena of nature. . . . [Such] are manifestations of laws of nature, free to all men and reserved exclusively to none.”

Are cDNAs a natural phenomenon or a human invention? The cDNA does not occur naturally, and is not a gene per se. Rather, it is a copy version of a gene with the introns edited out. It is coded into messenger RNA by the process that reads the raw cellular DNA. This fact leads to an interesting double-mindedness on the part of Daniel Kevles, historian of science, and Leroy Hood, molecular geneticist. On the one hand, they argue that “since it can be physically realized by a devising of human beings, using the enzyme reverse transcriptase, it is patentable.” On the other hand, Kevles and Hood are troubled. “If anything is literally a common birthright of human beings, it is the human genome. It would thus seem that if anything should be avoided in the genomic political economy, it is a war of patents and commerce over the operational elements of that birthright.”

In sum, cDNAs may prove patentable on the grounds that they are the product of a humanly devised process of gaining intellectual knowledge. But at the present moment this appears inappropriate, because the only value of cDNAs is that they tell us what is in the original DNA. As long as the Douglas principle holds that processes already occurring in nature are exempt, the human genome itself will not become patentable.

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