Fundamental issues

by John Coulter 15 August 2002

Dear David,

I think there are several far more fundamental issues that surround both matters than the strictly medical concerns over allergies. Perhaps you could send this out to your list. I would be very interested in the responses?

These issues are to do with the 'ownership' of genes and genetic information, who owns these things and for what purpose. And lurking behind these is the unfortunate observation that very few pollies understand anything about genes. They are still back in pre-Darwinian times when it was believed that humans were a separate creation. Thus they will legislate to protect human genes and genetic information but allow all other genes to be the subject of commercial ownership and exploitation. This is the basis of the problem.

When a totally new patents bill was going through the Federal Parliament in 1989 I noticed that it made no reference to the protection of genes from patent application. Accordingly, I sent the bill to a Senate Committee and there argued that genes should not be patentable. I lost the argument there and also when the bill came back to the Senate for debate. Subsequently, I placed on the Senate Notice Paper a very simple Private Members Bill which, as far as I am aware, is still there. It made quite explicit the fact that genes do not possess the qualities of novelty or inventiveness and cannot therefore be patented. Given that there are trillions of copies of every gene I think this should be self evident.

There are two of the properties required of an 'invention' for it to be patentable.

All readers of your material, unlike most pollies, will understand that the basic building blocks of DNA are common across all species - the same four bases write the DNA code for every gene Moreover, species share a lot of their genes; organisms that are evolutionarily close share most but even distant living forms like plants and humans share many genes. Nature is remarkably conservative and tends not to invent a new gene once it has one that does a job efficiently. The same cytochromes can be found in humans and strawberries. It logically follows that any concern over the protection of 'human' genes must therefore be extended to all other genes for how can you protect a 'human' gene if the same gene can be got from another species? Does the latter not gain any protection simply because of the organism from which it is extracted? The forgoing is to argue that the concern that pollies have expressed through legislation about the 'sacredness' of the 'human' gene must extend to all other genes. That it does not is a mark, not of logic, but of their ignorance.

The closely related issue is then the commercialisation of gene ownership. Once patenting of genes and private ownership for commercial exploitation is allowed both the research and the results of research will be directed toward maximising profit rather than serving the common good. Thus we find Monsanto making Round-Up ready crops because they also makes Round-Up rather than trying to put disease resistant genes into the same crops. The latter, once released, would not be a source of on-going profit but would serve the common good much better and more cheaply and without such a threat to the environment from heavier applications of herbicide. The same extends to pharmaceutical companies and the development of treatments for human diseases. The research will be directed toward what is profitable rather than what is needed by the global community. This has always been the case but in allowing the patenting of genes governments have handed these companies almost exclusive access to the most powerful technologies ever invented.

Hence my plea is for knowledge of genes, gene sequences and the right to research them to remain in the public domain. There should be no patenting of any genes or information on genes or gene sequences. Some have argued that such a move would reduce the funding going into genetic research. This claim ignores two further facts:
1. All monies going into research come from the community. Money comes back to the community either through taxation and the spending by governments on genetic research through publicly funded universities and institutes or through the profits (private taxation) made by companies on their products. The money comes from the same pool and the pool is of limited size.
2. Commercialisation of research is leading to excessive secrecy and is becoming inhibitory to the pursuit of open knowledge. This, together with the fact that private research is directed toward profit rather than the common good means that some areas of important research are very likely to become progressively restricted. This would apply, for example, to research into the ill effects of some genetic manipulations on which a company has spent a lot of money and which appears very profitable. In addition, diseases that may be disastrous for a small group of people, or plant diseases that affect a poor country will not get support from private sources while minor diseases in a rich country will.

To conclude. This is a plea that every effort must be made to remove this research and its applications from private, for profit, commercial enterprises and put back into public ownership in publicly funded universities and institutes. All information should be in the public domain. One of the simplest and most powerful ways of doing this is to remove the patentability from genes.