Biological Patent - Controversy

Controversy

Controversy over biological patents occurs on many levels, driven by, for example, concern over the expense of patented medicines or diagnostics tests against Myriad Genetics with respect to their breast cancer diagnostic test), concerns over genetically modified food which comes from patented genetically modified seeds as well as farmer's rights to harvest and plant seeds from the crops (for both issues see Monsanto article).

Each nation has its own patent law, and what is patentable in some countries is not allowed to be patented in others. Stem cells derived from humans are a good example of these differences. In the United States, isolated stem cells are patentable subject matter. However, a challenge against some US stem cell patents is being litigated by two non-profit organizations: The Foundation for Taxpayer & Consumer Rights and Public Patent Foundation along with molecular biologist Jeanne Loring of the Burnham Institute. The European Patent Office has ruled that certain stem cell lines, derived from destruction of human embryos, were not to be granted a European patent.

In the United States, biological material derived from humans can be patented if it has been sufficiently transformed. In litigation that was famous at the time, a cancer patient, John Moore, sued the University of California. Cancer cells had been removed from Moore as part of his medical treatment; these cells were studied and manipulated by researchers. The resulting cells were "immortalized" and were patented by the university and have become widely used research tools. The subject of the litigation was the financial gain that the university and researchers achieved by additionally charging money to companies by licensing the cell line.

Michael Heller and Rebecca Eisenberg are academic law professors who believe that biological patents are creating a "tragedy of the anticommons," "in which people underuse scarce resources because too many owners can block each other." The argument that there are negative effects on basic research appears to be mostly driven by academic law professors, and not by practicing university scientists.