Australasian Science: Australia's authority on science since 1938

The Case for Gene Patents

By Michael Gilbert

Patents are an essential incentive for investment in research.

The very word “cancer” incites feelings of fear and dread. Most of us do not understand where it comes from or why, the treatments seem unreliable and the outcomes are often miserable.

Some cancer researchers are supporting moves to ban gene patents because they are worried that access to critical information and materials will be stifled. They use emotive case studies to argue that somehow gene patents are inhibiting progress in curing patients.

They are missing the point and, surprisingly as evidence-based scientists, they are not applying the same techniques to critically examine the issues. There is little mention of the good outcomes that have been achieved using patented technologies.

The patent system gives the patent owner the ability to use their idea, exclusively, for a limited period of time. In Australia that is 20 years. After this period, the knowledge becomes freely available to society. The system encourages innovation, generating new ideas that have practical application. In the scheme of things, 20 years is a short period.

The medical and agricultural biotechnology industries use the patent system as a mechanism to recoup extensive research expenditure. Many public sector organisations do the same. Without gene patents we may indeed have less innovation rather than more. That won’t help patients.

As is the case with many new technologies, some of the early gene patents were very broad. These will gradually expire, and therefore concerns with that particular group of patents should not form part of this debate.

Gene patents in agriculture are becoming commonplace since it is now possible to improve plants by transferring genes from one plant to another. Genes can be turned on or off and made to work only in particular parts of a plant. The knowledge of genes and their function provides a valuable toolbox for improving the supply and quality of our food.

As transgenic crops become more widely accepted, Australian farmers will need to accept new technologies to remain internationally competitive. If gene patents are not issued in Australia, we may see growers missing out on access to technologies.

The Senate Community Affairs References Committee has been looking closely at a proposal to ban gene patents. It concluded that there is no evidence that such a ban would be effective and that there may even be unforeseen consequences from such a ban.

In human health there are already a number of options to protect patients. Diagnostic tests can be included in the Medicare system through PBS subsidies. In extreme cases, the Commonwealth has the right to compulsorily license patents if there is a perceived societal need. It seems as if there are sufficient safeguards in place to deal with the most extreme use of human gene patents.

The main issue in the gene patenting debate is not really about the patent system or the ethics of gene patents at all – it is about promoting innovation. If genes were not patentable, where would the money come from to pay for the research that generates the knowledge? If there is to be innovation, someone must pay for it, either the taxpayer through publicly funded research or the private sector, which will no doubt want a return on its money. Either way, someone must pay.

Some argue that genes don’t fit perfectly into the patent system because they are purely discoveries. Even if this is the case, then what system should be used to ensure that innovators are rewarded?

Genetic research is an expensive and time-consuming business. Before we decide whether or not genes should be patentable, we must ensure that we have suitable incentive mechanisms to stimulate innovation and allow society to benefit from innovations.

The patent system currently provides such an incentive system. Biological patents should not be removed from it unless a viable alternative is put in place first.

Michael Gilbert is the General Manager of the Australian Centre for Plant Functional Genomics.