Patents in Science: the Paradox of Intellectual Property

In an age of forever branching scientific progress, medical research, and global communication, we are still far from ridding the world of pandemics, eradicating hunger, or making amends with a ravaged environment. Indeed, science has brought humanity unquestionable commodity (albeit unevenly) and control over the world, but this has also created new problems; an exponentially growing population stresses finite resources and the increasing life-expectancy makes way for late-onset diseases which could have never boasted such prevalence in a younger population.

Despite common concerns and apparent globalisation, the importance of patenting in ensuring economic benefits might seem to threaten a free flow of information within the scientific community and the public domain, thus delaying scientific progress and its potential benefits to society. Is this claim and control over progress justifiable when such sensitive issues such as human health are involved? Can science be owned?

Often we forget just how much in our day to day lives we owe to science. Virtually all the elements which make the developed nations’ average lifestyle a relatively comfortable one are fruit of the forever advancing march of scientific research. Technology has not only broken down the physical barriers to communication and provided us with much cause for procrastination, but has enabled mass production and distribution of most products we purchase. The contribution of medical advances toward this commodity is perhaps even more obvious – some common illnesses once have been considered fatal are now easily cured with medication, or avoided altogether thanks to health education.

However, to misquote the Greek philosopher Parmenides, “nothing comes for nothing” [1] – and science is no exception. Doubtless, this will come as no surprise, public funding does of course play an essential role in enabling scientific research; but so does private funding, and private funding tends to need a more tangible incentives than “mere” public benefit [2]. The arguments behind the patenting of scientific advances – not just products, but also methods, procedures and, as we’ll see, even genes – are more contentious than those for granting Intellectual Property (IP) rights in other areas (such as the arts) because of the  implications their results can have on individuals, on society, on the planet as a whole, and on future research and progress. In addition to praising and rewarding effort, patenting science encourages research by providing not just an incentive to the scientists, but to potential investors. What’s more, by recognising work as IP it ensures that knowledge of it reaches the public domain – if only for thought and not application [2].

Recently there has been concern amongst European scientists about the future of stem cell research in light of a rule drawn by the EU court in this past October [3]. The court ruling did not – as much of the media seemed to try and infer – ban or put any restraints on the research itself: it banned the patenting of human embryonic stem cells. The immediate reaction from the scientific community within Europe reflects just how important IP protection can be – scientists fear that there will be less interest from investors and that the advances made in Europe will be benefitted from elsewhere, where stem cell patentability is still possible. [4]

The decision in Europe hopes to encourage open cooperation between different research groups [3], because despite the theoretical aims behind patenting, it can easily backfire on the principle of sharing information: when research is withheld or restricted until a IP recognition can be arranged. This implies that separate investigation bodies cannot makes use of information already carried out, which could benefit further research and more rapid results [5]. Once patents have been accepted and applied, a whole new set of constraints come into play.

Patents may not come into play on “proof-of-concept” research, but they are an obvious barrier when it comes to applying anything drawn from such work, a serious handicap given the potential recognition of rights for materials and procedures used. It is now almost invariably necessary for any research body to employ companies to deal solely with IP rights – even if there is no interest in patenting their own work [6]. This does not only infer a high economic cost, but again drains on precious time. The case of “Golden Rice” is a clear example of this. This transgenic variety of the carbohydrate is the staple for half the world’s population [7] was engineered to combat the high level of Vitamin A deficiency in the developing world. However, the regulation of genetically modified crops meant a ten year delay on the deployment of a crop which could have improved and even saved thousands of lives [8]. Fortunately, the humanitarian nature of this case meant that eventually free licenses were granted for the production of Golden Rice, and although IP protection was just one obstacle laid down in the regulation process, it nonetheless played a part. [2]

Time constraints, economic gains, and personal recognition aside, at the heart of the debate on the patentability of science lay even more contentious ethical issues which can be, quite literally, much closer to us. The question of whether it is morally acceptable to patent certain elements such as living organisms or genes.

An item eligible for patenting must be novel and original [5]. There is a distinction between discovery and invention, where the former cannot – in theory – be granted a patent even if other IP rights might be applicable. The trouble nowadays is drawing the line between discovery and invention, which has become blurred by practices such as genetic engineering (GE). Once, applying to patent a living organism would have seemed absurd, but in light of GE crops and laboratory strains and animals, this is now possible.

Even more delicate matter is that of our genes. The USA claim almost 20% of the human genome as IP [9]. This begs the question whether it is possible for entities to claim ownership over something which is literally embedded in us. It is not only gene therapies which have been patented, but entire gene sequences, the majority of which, unsurprisingly, are involved in diseases such as cancer [9]. You can own the copyright to a book, but you cannot patent the style in which it is written and certainly cannot make such claims over the words. Genes are a physically inseparable part of what we are – can a company rightfully claim ownership over the sequences that define our biology?

Some compare this to a price tag on the right to live, especially amongst fears of widening the economic gap not only between nations, but within them – as private bodies hold the rights to potentially life-saving therapies without the possibility of competition arising, a monopoly is inevitable and can easily restrict access to new forms of health care to the wealthy [5].

The issue of patenting science is therefore a delicate one. On the one hand it represents a valuable incentive for both researchers and external investors; on the other, it can restrict the flow of information and resources, alienating research entities from each other and accentuating economic differences. Certainly, it is only fair that IP rights are recognised, but the case is not whether or not the fruits of science as a whole should be eligible for patenting, but each specific case must be put into context and treated individually. What’s more, clear and universal distinctions between discovery and invention should be made.

S.-Xaali O'Reilly Berkeley, November 2011.

What is Science For? FLS, University of Manchester, 2011

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[1] Original quote: "Nothing comes from nothing". Parmenides (5th century BC) in On Nature.

[2] Potrykus, I. (2010). The private sector’s role in public sector genetically engineered crop projects. New Biotechnology, 27(5), 578—581.

[3] Nature News (2011). European ban on stem-cell patents has a silver lining. 24 October 2011, available at: http://www.nature.com/news/2011/111024/full/478441a.html

[4] The Independent (2011) Medicine thrown into crisis by stem cell ruling. 19 October 2011

[5] Nuffield Council on Bioethics (2002). The ethics of patenting DNA: a discussion paper.

[6] Gonsalves, D., Karl Maramorosch, A.J.S. and Thresh, J.M. (2006). Transgenic Papaya: Development, Release, Impact and Challenges. Advances in Virus Research, 67, 317—354.

[7] Kiple, K. F. and Ornelas, K. C. (2000). The Cambridge World History of Food. Cambridge University Press.

[8] Potrykus, I. (2010). Lessons from the ‘Humanitarian Golden

Rice’ project: regulation prevents development of public good genetically engineered crop products. New Biotechnology, 27(5), 465—472.

[9] Jensen, K. and Murray, F. (2005). Intellectual Property Landscape of the Human Genome. Science, 310, 239—240.