In the race to uncover the genetic bases of illness, disease and even human characteristics, scientists and the companies and institutions that pay them have begun to protect the fruits of their efforts--with patents for their work. They have made claims to patent the discoveries of genetic sequences for specific diseases or traits, and for genetically modified organisms themselves. How does this fit with our ideas of rewarding people for their labor and protecting their discoveries?

What's your opinion?

"Nature's Genes, but Whose Profits, Whose Labor?" is the third part of an on-going series on genetics issues. Part 2:Genetic Testing and Insurance Part 1:Genetic Testing: The Future is Here

The system of patents exists to protect the interests of both inventors and society. Inventors have the incentive of a limited monopoly on their innovations, allowing them to sell or license their products or techniques for profit. Society benefits by the advancements of innovation, but, in the case of genes, only if the patenting process lives up to the spirit of the system.

Does patenting genes amount to protection for the discovery of some physical phenomena, or protection of an invention? For me, the discovery of genetic information is akin to the discovery of a physical property such as the chemical makeup of a mineral, such as gold. We wouldn't allow such information to be patented, but would protect the testing process or machinery developed to test the purity of the mineral. The innovation is in determining whether a sample contains a precious metal, or a specific genetic marker, not in uncovering the physical composition.

For gene patenting, this logic argues that the techniques and tools developed for gene discovery ought to be protected, but that the information about genetic makeup itself should be free for anyone to discover. Protecting genetic information by patents would be like patenting your phone number so that anyone who wanted access to it would have to pay a licensing fee every time it was used. The U.S. Patent Office has granted protection for a growing number of gene sequences. As these patented fragments turn out to be part of subsequently discovered larger stretches of DNA that code for other diseases or characteristics, the scientists who need access to them are faced with licensing fees for potentially many fragments.

The alternative poses problems, as well. It takes substantial investments of time, expertise and money to discover the makeup of the genes for diseases, such as cystic fibrosis. Without a financial reward for such investment, fewer scientists will study gene sequences -- taking innovation with them unless and until they can develop a patentable invention.

Teaching an old system new tricks

One way around this problem is for the federal government to buy the rights to all discovered gene sequences -- just the "raw" information -- paying the scientists who uncover the information and making it available to all for further research.

Our 200-year-old patent system never was intended to address the question of patent protection for genetics, and the slowly changing system coupled with rapidly changing science makes for strained public policy. This issue will receive careful attention in the coming years, not only in this country but across the world as genetic sciences increasingly become a global effort. The challenge will be to protect the rights of the innovators while preserving the principle of freedom of information. The patent system creates rather than recognizes these rights, and we make bad policy when we forget the difference.