Patenting genes deters progress

In the not-too-distant future, doctors will prescribe drugs based on whether you have a certain genetic mutation. They'll recommend a custom-designed diet if you have a gene that predisposes you to high blood pressure or obesity. And they'll know your risk of dying young from a vast array of diseases.

In short, advances in genetic science will make one-size-fits-all medicine a thing of the past, enabling longer, healthier lives. But to get there as quickly as possible, society must answer a big question: Should genes, the basic building blocks of heredity, be patented?

For more than 30 years, the answer has been yes. As a result, 20 percent of the human genome is already covered by patents. But a growing chorus of opponents has been arguing against the practice, which was recently upheld by a federal appeals court after a shocking earlier reversal.

Proponents of gene patents argue that they're vital to promote advances in genetic medicine, such as the test at the center of the recent appellate case. It involved two genes linked to higher odds of breast cancer and patented by Myriad Genetics Inc., a Utah biotechnology company. Without the 20-year protection of a patent, this argument goes, companies won't risk the capital necessary to innovate.

But on closer inspection, this argument doesn't hold water. A panel of experts appointed to advise the secretary of the Department of Health and Human Services delved deeply into gene patents and genetic testing, for instance, and its findings suggest the patents don't work as advertised. The panel said patents don't motivate scientists, and while they may stimulate investment, most basic genetic research probably occurs at taxpayer expense. One study found that the National Institutes of Health spent $14 billion on genetics research from 2003-07.

The federal panel also found that patents can hinder genetic research by discouraging others from doing follow-up work, and that exclusive rights aren't needed to spur the development of genetic tests. The panel notes that dozens of public and private labs have developed genetic tests for cystic fibrosis and Huntington's disease, thanks to a nonexclusive arrangement with the patent holder. And while the committee stopped short of advocating an end to gene patents, it urged major exemptions. The federal government, meanwhile, came out against isolated gene patents by entering the Myriad case against the company.

In truth, the patenting of genes was always intellectually and ethically dubious. Human genes are body parts, not inventions; patenting them makes as much sense as letting an early surgeon patent the human liver because it could be used in some kind of test or therapy.

It's worrisomely unclear, moreover, whether the passel of existing gene patents will interfere with patient care when it becomes possible to lay out an individual's genetic blueprint quickly and easily. A glimpse at the sequences will reveal important clues to a person's health, paving the way to a new era of medicine tailored to an individual's genetic makeup. But it won't happen if patents get in the way.

Some experts argue that the patent system needs to treat different industries in different ways, since what's good for biotechnology might be less apt for software. Yet the patenting of genes is not a unique problem; on the contrary, it's symptomatic of our nation's dysfunctional patent system as a whole. It's a system that grants far too many patents for generic processes and picayune advances, each of which then becomes an economic land mine threatening subsequent innovators. For example, when the U.K.-based Internet music service Spotify came to this country recently, it was promptly sued by a firm claiming a patent on distributing music in digital form.

It's time we got the patent system out of the way of progress. Limiting gene patents would be a good place to start.