Buried in the recent news coverage and commentary on President Bush's limited imprimatur for federal funding of human embryonic stem cell research was a significant piece of information: U.S. patent No. 6,200,806, issued to the Wisconsin Alumni Research Foundation, affiliated with the University of Wisconsin.
The patent covers human embryonic stem cells and a method of isolating those cells. It was issued in March of this year.
The WARF patent is yet another instance of genetic patenting that some have described as a frenzied gold rush or, more aptly, a gene grab. Already, more than 1,000 human genes have been patented and tens of thousands of other human gene patents are pending.
Genes that hold the secrets to potential cures for arthritis, breast cancer, Alzheimer's, osteoporosis and a number of other diseases have already been patented.
For some, that is great news. It means cures are on the way for diseases we have always thought incurable. The patient community is a powerful and compelling lobby for genetic patenting, fully sold on the big pharma and biotech reasoning that no one would invest the millions it takes to look for cures without the right to patent.
Those who question the patenting of human genes appear to be a small and silent minority, perhaps because they are in the uncomfortable position of seeming to lack compassion for those who have long suffered from these diseases.
At the risk of appearing to lack compassion, I submit there should be an immediate moratorium on human gene patenting until we have had the opportunity for full public debate on its implications.
How can a gene ever be considered a human invention? How can a gene be the intellectual property of the 'inventor" when that gene has been part of the physical makeup of every human being who has ever lived?
Proponents of genetic patents explain that it is not the individual gene that is being patented but isolated DNA sequences and the proteins expressed by those DNA sequences. At best, that is sophomoric rationalization. It sounds more like exquisite obfuscation.
William Haseltine, CEO of Human Genome Science, a company at the forefront of applying for genetic patents, has written that the patents cover "individual genes removed from the natural context of the human body." A gene is a gene is a gene -- removed or not removed from the human body.
There has been little public debate on this issue. The manipulation of plant and animal genes has sparked highly publicized protests that have become regular WTO events. But when it comes to human genes, the dialogue taking place in academic and scientific circles has not reached the general public.
It took years of litigation and several U. S. Supreme Court cases to settle the patentability of computer code and computer programs.
The first human gene patent was issued almost 10 years ago, but we still do not have a single Supreme Court decision addressing the issue.
Surely, the patenting of human genes should raise legal, ethical and moral issues at least as important as whether computer code should be considered intellectual property.
There are a few voices concerned with balancing private property rights and the public good urging Congress to engage in thorough deliberations on the issue. Even the director of the Patent Office has expressed concern over "stealth" or "submarine" patents that stake claims to a gene without really knowing what the gene can do. He proposes to require proof of "substantial, specific and credible use for the gene."
Unfortunately, these and most other arguments for and against the patenting of human genes reduce the analysis strictly to economic and utilitarian terms.
More important, we need to debate openly and thoroughly the question of whether the essence of our shared humanity ever ought to be considered private property.
There is widespread consensus that human cloning ought not be allowed, and scientists and politicians alike here and elsewhere do not hesitate to use the language of ethics and morality to make that argument.
The patenting of human genes merits at least that same kind of ethical and moral analysis.
I do not have any answers. But, intuitively, I believe that we ought not make up our minds on this issue until all the implications of human gene patenting -- economic, scientific, utilitarian, ethical and moral -- have been fully debated in the public square by the best and wisest among us in all the pertinent disciplines.
Perhaps then a consensus could be developed that can undergird the laws that will determine if and under what conditions human genes may be patented.
Chi-Dooh Li is a Seattle attorney. E- mail: CDL@elmlaw.com.
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