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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