Of Genomes and Lightbulbs

The human genome has been sequenced! This is undeniably a great scientific achievement. It is being hailed as one of the greatest milestones in history, right up there with the discovery of penicillin; of relativity; of the laws of motion or the Quantum theory. And yet, such giant steps are not quite -- somehow -- what this breakthrough is sounding like, as the media struggle to describe it. So far, in fact, the analogy that makes the most sense to me is that of the "discovery" (by Europeans) of the "New World". What that did, of course, was to open up vast commercial potential, and that seems to be what the genetic revolution will do too.

The raw data, those three billion or so sets of four letters in combinations, is (mostly) in the public domain, which was the intention of the human genome project from the start. The genome itself has no commercial value and, indeed, almost no meaning. Its significance is merely that the bits have been read; the pieces have been laid out in a line. Every next step depends on that, of course, and yet the line itself is free; it can be viewed by anyone on the internet. The value will come from what we can learn about individual genes: what they do, what diseases they can cause, what drugs be developed to treat or cure those conditions -- this is the gold to be mined by the emerging field of "bioinformatics".

We should remember, too, that the complete sequencing of the human genome is a big headline event, but the field has been going about its business for some years now. The genetic codes of some simpler animals (fruit flies; nematodes; mice) have already been catalogued; researchers are busy scanning them for segments that correspond to segments of the human code. Many have been identified. When they are, and when a probable clinical benefit can be inferred from the observed structure, then these snippets of genetic code are deemed patentable by the United States Patent Office. This sort of computerized analysis is now being referred to as biological research in silico. This reading of patent law is controversial; many commentators are now saying that the Patent Office has been too liberal with the few thousand patents for genetic material it has awarded so far. Incyte Genomics, a start-up based (naturally) in Palo Alto, California, has some 500 of them; Celera, the company that pulled off the coup of beating the federal research team to the human genome finish line, has recently applied for over 6,000. The Commerce Department has indicated that the rules will soon be re-evaluated -- which has investors in biotech firms on the edges of their seats.

Although there is controversy about the patent rules, there is no disagreement among the major players that genetic material should be patented. The debate is characterized merely as a technical dispute over how clearly the patent applicant must describe the gene's function before monopoly rights are awarded. Many patents have already been granted for genetic sequences, in spite of the fact that the discoverers had only a vague notion of what their snippet of genetic code actually does. The firming up of patent rules, if it is to come at all, will be in this area. Once that uncertainty is cleared up, genes will continue to be patented.

Most people think of a "patent" as a privilege granted to an inventor of a new, unique, useful device; we think of Thomas Edison inventing the incandescent lamp. Over the years the law has gotten much more specific, but the basic idea is still there; things are patentable in the US code if they are "processes, machines, manufactures, compositions of matter or new uses of any of the above." Things that are not patentable include "laws of nature... theories, plans of actions, ideas, or results". There is some ethical legerdemain here, it seems. A sequence of your personal genetic code isn't patentable, because that is a naturally-occurring part of you. It's only the therapeutic (or otherwise profitable) use to which that information can be put that is considered to be intellectual property. However, genetic therapies only become possible if one has access to specifically identified sequences of genetic code (a process which takes a great deal of time and money). So pieces of the code must therefore be patentable (even if they are part of you and me).

Once drugs have been developed using genetic information, they will themselves be patentable, of course. And while the patenting of genetic sequences may seem a little fishy, surely no one doubts that drugs should be patented -- do they? Yet, if we look at the principles on which such judgements are based, the clear line between them starts to squirm. It is discovered, let's say, that a certain chemical bonds with a certain protein in the body to achieve a desirable result. What about that did the inventor actually create? The researcher does not invent that chemical reaction; he observes it; in fact it is a "result". (But a "result", according to patent law, isn't patentable!)

The (rather troubling) logic of this argument shows that if there is no ethical basis for patenting genetic sequences, then there is no an ethical basis for patenting drugs -- or even light bulbs, for that matter. Great as he was, Edison did not create the vacuum, the carbon filament, or the electric current. He ingeniously combined them in such as way as to observe a very interesting result -- but he did not create that result; he discovered it. And in fact the same is true of every patent that has ever been granted. Natural materials and forces, waiting to be discovered, are all that any inventor has to work with. The effect of a patent is to give one individual -- who just happened to get there first -- a monopoly right to profit from a natural force or process. A bit like Columbus and the Americas, after all.

It ought to be said that patents are not usually justified in terms of ethics, anyway, but in terms of the greater good. It may not be completely right to privatize the forces of nature like this, but people's greed being what it is, why, it sure makes for some neat discoveries. We all stand to gain from the advances of science -- and without the profit motive, why would people go to the trouble? We might still be curing people with leeches, and traveling by horse.

In fact, patents have often served to stifle discovery and innovation. For example, it does indeed cost a great deal of money to exhaustively test a new drug and bring it to market. Once the patent is secured, however, the holder wants to get the most profit possible. That company -- which has employed the best scientists and gathered the most complete data on the problem that the drug was made to solve -- now has no incentive to use those resources to find a better way to solve it! Their incentive is to keep people buying and using the patented drug for as long as possible.

And in fact, the preoccupation with valuable intellectual property has exerted corrupting influence throughout the sciences, as universities court corporate investment in ever- costlier scientific equipment, and then must follow heavy-handed directions on what the equipment will be used to discover, and offer proprietary considerations in what is found.

There is an alternative -- although at first blush it will sound rather scandalous. It is for pure scientific research to be publicly -- generously -- funded. (That is, after all, how most of the human genetic code was sequenced.) All discoveries should be placed in the public domain. If private firms have hot ideas and wish to invest in research endeavors of their own, more power to them -- but they should assume the risk.

Before you recoil, gentle readers, in horror at this suggestion, I must remind you that such a program has a long record of success. Military scientists have long been publicly and generously funded. They have provided us with the finest fighter planes and ballistic missiles, and the most lethal small arms ever built (not to mention landing men on the Moon) without the merest hint of entrepreneurial discipline. Public (generous) investment into basic science at the Pentagon has even provided us with the world's most dazzling military by-product: the technology of the Internet.

Finally, as for those hard-working readers who can't stand the idea of the fruits of your toil being confiscated to pay scientists just to figure stuff out, I must hasten to agree. I don't want my wages being confiscated to subsidize a bunch of geeks! No, the rent of land and natural opportunities would provide ample funding for all the basic science we could want. If we would collect public revenue from its natural source, and stop penalizing people for contributing to the economy, then public spending would not be as begrudged as it is today. We'd be happy to let explorers explore, undistracted by concerns of corporate profit -- and we would all benefit from the noble progress of science.

Lindy Davies -- July 14, 2000

What Folks Have Been Saying:

what will be the motivating factor for scientists to work ? they will end up like bureaucrats, lazy, sloppy and unintersted in their own work.
prakash <[email protected]>
chennai, tn india - Sunday, July 16, 2000 at 01:26:24 (EDT)
Excuse the somewhat long post here, but I have just been reminded that Thomas Jefferson, of all people, felt the same way on this:

It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors.

It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.

Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

—Thanks to Dan Sullivan

Lindy Davies <[email protected]>
- Sunday, July 16, 2000


In reply to Prakash, To understand the forces that drive many creative, intelligent and productive people throw out the concept of enlightened self interest (i.e. greed?) and look at the incredible strides being made by the Linux crowd. Look for a paper called "The Cathederal and the Bazzar" (Sp?) by Eric Raymond. The reliance on greed and money to create progress is, at least in my opinion, too narrow. We humans are far more complex than that. Many scientists and inventors are in it for the sheer excitement of discovery, the fame of being first or the pride of being held in high esteem by their peers. I suppose these things are still about enlightened self interest but they are NOT about money and the promise of intellectual property will not likely influence these folks much. I think there are a number of unintended consequences to using money to encourage creativity but will leave that to your imagination. I'm not necessarily suggesting eliminating the patent system but I would like to see the scope of patents limited and I believe that only individuals (not companies) should be entitled to hold patents. Patents could be leased to companies but never held by them and never automatically assigned to them.
Matt Welland <[email protected]>
Richmond, vt usa - Tuesday, July 18, 2000 at 07:51:38 (EDT)
What is landed property?
Bonnie Fillis <[email protected]>
Penacook, NH USA - Friday, July 21, 2000 at 23:45:11 (EDT)
Well, it just means "land", basically, Bonnie. It's a somewhat archaic term that hearkens back to the days in which landowners were the really influential citizens; in many places only landowners had the vote! You've heard of "landed gentry", for example -- there's another sense of the term -- landowners as people of substance, influence, responsibility. Many connotations there. Here are a few more comments on the singular character of "landed property".
Lindy Davies <[email protected]>
- Saturday, July 22, 2000 at 10:42:50 (EDT)
Please keep posting me the THE PROGRESS REPORT. Keep it up. Regards.
Dr. NANDLAL JOTWANI, Ph.D.; <[email protected]>
New Delhi, New Delhi INDIA - Sunday, August 13, 2000 at 20:29:31 (EDT)
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