Push-back on Genes as Property

As a start, I support the idea of individual or corporate property rights as an irreducible question of freedom. This is based on the belief that ownership comes with choices and clearly defined rights are merely ways of according arrangement to a right that is inherent. That notwithstanding, the radical extension of intellectual property rights sometimes leads sensible people to question to what extent the assertion may go. Practitioners and scholars have argued for close to two decades now about the ability of firms or individuals to assert property rights through the legal instrument of patents, on biological organisms or portions such as genes.

It is mostly biotechnology firms that have tended to assert patent rights on genetic material by arguing that the isolation of genes creates a property interest in them. A judge in a US District Court appears to have momentarily put the brakes to a biotechnology company's claims to patent a couple of genes that it isolated as predisposing factors to breast and cervical cancer. To my mind, the judgement is correct primarily because the discovery f genetic material such as genes that already existed does not meet the test of having created it. True that it is a great service to isolate the genes but there are scientists who discovered blood groups and rhesus factors but cannot sensibly claim patents on those.

Secondly, my thinking is that because intellectual property rights recognized by the legal instrument of patents create monopolies around knowledge, the test for granting them should be strict indeed. This is not to say that they ought not to exists but rather that the isolation of the two genes by itself has led to an identification of a factor but that should not extend to ownership of those genes which precludes research in alternative ways of conducting tests to determine risk factors. A balance of these factors against the need to provide incentives for basic research leads me to the conclusion that the judgement was correct. As the story states, Myriad genetics was already using the patent to charge patients high fees for tests with full knowledge that the patent meant that there would be no alternative test based on the same genes.