Health Science Technology

Human DNA Belongs to No One – It Shouldn’t be Patented

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In 2013, the US supreme court held that mutant BRCA 1 human DNA, isolated from the human body, is not a patentable subject matter under US patent law.

Last month an Australian federal court held that it is patentable subject matter under Australian patent law.

How did this happen?

>To understand it, we have to go back to June 1988 when representatives of the European, Japanese and US patent offices came to an understanding about what to do with patents over DNA. It was less than two years after Genentech Inc had floated on the American stock market. Recombinant technology, invented by Professors Boyer and Cohen, enabled the production of pure human proteins using human sourced DNA. Patents granted over isolated human genetic material extracted from the human body, much like mining claims over alluvial gold, spurred a DNA gold rush.

In the end, it is about money and big corporation’s greed for more money.

In 1989 in Britain, the court of appeal held that DNA was a discovery of nature and invalidated Genentech’s patent claims to the isolated DNA of human tissue plasminogen activator.

The European Patent Office, which had already granted patents over isolated DNA, was shocked by the British rebuke.

By 1998 the European parliament passed the European biotechnology directive, ensuring that the European Patent Office’s approach was mandated as law throughout the EU.

In 1980 the US supreme court held that “anything under the sun made by man” was patentable, upholding a patent application to genetically modified bacteria that degraded crude oil.

By 2005 over 20% of the human genome was the subject of US patents.

March 2010, A US district court judge held the patent claims over isolated BRCA genetic mutations invalid. “They were not inventions. An appeal to the US federal circuit soothed fragile nerves. Then, a second US federal circuit appeal seemed to settle the issue. However, the US supreme court overruled it.”

>The US Supreme Court held that the isolation of DNA from a human being does not result in something that displays “markedly different characteristics from any found in nature”. It is not the same as a genetically modified bacteria that degrades crude oil. While that bacteria is the product of human ingenuity, the isolated BRCA gene mutations are not.

Since then, the US Supreme Court has been bombarded by the patent monopolists.

>Patents over human DNA, a material that nobody invented, will, as the US justices’, warn: “impede the flow of information that might permit, indeed, spur, invention.”

>The Australian judges, in contrast, argue that: “This case is not about the wisdom of the patent system … It is not about whether, for policy or moral or social reasons, patents for gene sequences should be excluded from patentability.”

Americans are now free to use DNA to develop new products. Australians are not. Neither are Europeans.


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“Human DNA Belongs to No One – It Shouldn’t be Patented”