Gene Owning: EIIects oI Gene Patenting

Renz Keanu M. AlIonso

ENG 2 F-2R
Ms. Katherine Gonzales
September 23, 2011



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Introduction: The Unethical 1ob
Frank Burnet was in trouble. In Iact, he was very much in trouble since his illness
emanated in his system. He had a disease called T-cell lymphoblastic leukemia, also known as
the cancer oI the bone marrow. In order to Iight the disease, he had been through a lot oI
processesIrom the physical exams, CAT scans, biopsy oI the bone marrow to come up with
the dreadIul diagnosis, to a number oI surgeries and chemotherapy sessions. Every day he have
to suIIer the pains and diIIerent procedures to salvage his liIe only to know that he had less than
a year to live. Not believing the prognosis, he got second and third opinions to a couple oI
doctors. But they too, have the same prognosis and told him that his physician, doctor Gross, was
the best Ior his disease. Losing hope, he had done their suggestion, Iollowed all
recommendations oI doctor Gross, and initiated all the therapies to the doctor.
But an unexplainable thing had happen. With the help oI the doctor, Frank Burnet had
Ielt an extreme improvement in his disease. Until the day came that doctor Gross has said to him
that he was Iree Irom his disease and he was going to live his liIe again normally. Since that day,
he had regular Iollow up examinations with the doctor every three months to ensure his
condition. Until another wave, he thought, was yet to come.
They said that it was not cancer, but aIter Frank Burnet received another phone call
saying the he needed to do more tests and examinations, he Ielt a Iamiliar apprehension way
back a year ago. He had begun another liIe and built a new hope. But he had Ielt something more
terriIying will happen so he obeyed what his doctor have said. He had undergone a liver biopsy
and was told to come back in six months. He really had no idea Irom what is happening because
his doctor has not told him a thing about it.
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He had undergone several testing Ior Iour years but still have no idea oI what had
occurred in his system. He still Ielt healthy but doctor Gross insisted that he must undergo more
tests. He was then giving him more papers to sign which says that he was to undergo a
procedure with risk. Another paper came that states that he was to be involved to a research
project that he have no idea oI what was about. And then there was another ten-page document
which states his permission to the commercial use oI his tissues. In the end, he had reIused to
sign the paper and doctor Gross had stopped treating him and threatened that he was risking his
liIe by not signing the papers.
Eventually, he Iinally Iound out that his tissues had been sold by doctor Gross to a drug
company called BioGen with an amount oI three billion dollars.
But Iortunately, Frank Burnet, as well as all persons and things discussed above, was not
real. They were only a work oI Iiction created by Michael Crichton in his novel entitled Next
(2006). But Crichton did that Ior a reason. Many people have been aware that advancement in
the Iield oI biotechnology have a great impact on business and agriculture and can be considered
as beneIicial. The new Irontier in this Iield, genetic engineering and molecular biology, can be e
developing Iield that have Iavorable eIIect and can have great impact on the development oI
plant and animals Ior human consumption and use. Through the manipulation oI genes, we can
produce organisms with improved and desirable traits. This Iield also caters its potential in the
Iield oI medicine and pharmacy. Diseases were discovered and cure were created by observing
our system in the molecular level, our genes. We can now make tests Ior a disease by examining
their genomes, and we can create medicine trough the help oI genes.
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But aside Irom the beneIits mentioned above, there are things we must consider in the
processes on making these developments. We also have to be aware that there are things which is
not Iavorable to man as well as other organisms during the process. And one oI these things is
what we call gene patenting. Due to advancement oI the Iields said above on medicine, industry,
pharmacy and other related studies, property right like gene patenting are increasing to ensure
the security against disownership and to take advantage oI its potential to become a lucrative
business, which may lead to devastating eIIects in the Iield oI bioethics. It is thereIore important
Ior us to understand the potential consequences on the said right because it includes our gene that
we have in our system. The Iact that somebody owns our gene is too absurd to happen. Naturally,
we own our body and all its scope and no one is going to get that away Irom us. It is a part oI
nature, like the mountain, the animals around us, even the universe as a whole. So we have to
ensure that no one will own that microscopic molecules making its way to replicate, mutate, and
synthesize protein Ior the sustenance oI our liIe.

The World of Patenting
Biotechnology
In order to understand gene patenting, we have to consider the Iield oI expertise that
surrounds it, biotechnology. It is a new and developing science-based technology that uses
organisms or part oI these to develop and/or improve other organism or other products (Barnum,
2005). It has two main branches, the traditional and modern biotechnology. Traditional
biotechnology includes procedures and practices the man has been doing centuries ago without
recognizing its scientiIic imparts. These include diIIerent Iermentation procedures like the
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production oI tuba, beer, patis, bagoong, yogurt, cheese, and many others. In order to produce
these products, diIIerent microorganisms were used, like yeast, lactobacillus, etc.
On the other hand, modern biotechnology includes the modernized way oI using part oI
these organisms to improve other organisms. Its most Iamous Iield is genetic engineering, which
uses genes that codes Ior a speciIic trait Irom another organism and insert it to another organism
so the trait Irom the genes will be expressed to the modiIied organism, improving its trait and
characteristic. With this type oI engineering, we can produce transgenic or genetically modiIied
products like Bt corn, Bt eggplant, and Bt cotton, to name a Iew, that uses gene Irom another
organisms, which in this case, the bacteria Bacillus turingiensis. This organism codes Ior a
speciIic toxic genes that kills larvae oI insects in the order Lepidoptera (butterIlies and moths),
but does not have any eIIects on human being.
The said Iield has currently been developing and have already produced several
transgenic organisms under Iield-testing and inspection.
Patenting: Defined
The process oI patenting is a procedure not new to the world oI science. This practice has
been done by many inventors and scientists centuries ago Ior them to be recognized by many
people Ior his or her accomplishments. According to Crespi, the main principle oI patenting is
the agreement oI the inventor and the law wherein it excludes other person in using the patented
invention Ior a certain period oI time without the permission oI the patentee or without Iollowing
the rule agreed upon by the law. However, the patentee have to reveal his or her invention to the
public Ior Iree use when the agreed period oI time expire (1982). Also, Calvert, in his article
entitled Genomic Patenting and the Utility Requirement, states that 'the aim oI patenting is to
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promote innovation by giving the inventor a limited monopoly on their invention, limited by
time and geography (2007). II someone discovered or invented a certain invention, the Iirst thing
that comes to his mind is Ior him to be known and acknowledged Ior his accomplishment. But a
lot oI people can also claim that they were the original inventor oI the said invention. So one oI
the thing to prevent this is to patent the invention by the original inventor to avoid the
misownership oI his own invention. That is one oI the main reasons why we patent.
However, it is most oIten mistaken that patentees have the utmost Ireedom Ior his
invention. In reality, laws and rights other than the original may aIIect this Ireedom (Crespi,
1982). A patent does not give right to do anything with the invention. It only gives an 'opposing
right Ior the patentee to deIend against the use by others through creation, manipulation, or
trading (Einhorn, 2004).
Things to Patent and Not to Patent
OI course, patenting is generally used Ior protection against disownership. However,
there are things to consider beIore entering such arduous and highly technical procedures. First,
we must know that there are certain limitations in patenting products and discoveries. Inventions
are the most patentable things because a person can easily do this iI there is a prooI that he is the
Iirst and the only one that created his inventions. But the Iield oI such science that involves
chemicals, processes and the biological, there are diIIerent things to consider. In this paper, we
will discuss more on the patenting oI the biological and its eIIect.
As Einhorn states, 'The Supreme Court acknowledged that Congress, through legislative
history, intended statutory subject matter to include anything under the sun that is made by man
(2004).` It says in his text that anything in the universe can be patented iI, and only iI, it is an
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invention created by us. Thus, everything that we had created, Irom the chair that we are sitting,
to the latest hi-tech gadgets, as long as passing certain procedures, can be patented.
Currently, many chemicals, inventions, electronic devices, book, and many other things
we use on a daily basis, have undergone such property rights. Actually, patenting is only one oI
the many industrial rights that have been established. Other property rights include designs,
trademarks, copyrights, and plant variety, just to name a Iew (Crespi, 1982). Design applies on
protection on design and shapes on an article. Trademark, however, ensures the protection on
symbols, words, or both which is used by companies to establish their products. Copyright, on
the other hand, enables the protection against disownership oI a published work such as books,
articles, music records, movie, etc. And Iinally, plant varieties tackles on the protection on
selling seeds, Ilowers, or other reproductive parts on a certain plant varieties. This type oI
protection is largely applied in rice and other cultivated crops (ibid, 1982).
We all know that gene patenting covers a wide scope oI things, but there are still
limitations on its scope, that is, not all things existing in this planet can be patentable. According
to Einhorn (2004), the Supreme Court oI America have listed three things that cannot be
patented. These are laws oI nature, natural phenomena, and abstract ideas. Law oI nature include
the things that we naturally observe in the universe. Gravity, Ior example, is a universal law that
was discovered by Sir Isaac Newton. We must know that discoveries can be patented. But the
said law would not and cannot be patented by Sir Newton Ior the discovery is naturally existing
in the universe. II he had not discovered it, the said law will still exist.
The second things that cannot be patented are the naturally occurring phenomena. Again,
these phenomena have been existed beIore we know such a thing. One oI the best example is our
cell. It is considered as the basic unit oI liIe, and comprises oI many complicated processes to
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sustain its need Ior nourishment and reproduction. One oI its major processes is mitotic cell
division or mitosis. Mitosis is naturally occurring phenomena and cannot be patented.
Crichton (2006) stated in his book that there is a simple test to determine iI a thing can be
patented or not. He says that iI a thing had existed billions oI years beIore the creation oI human
being, then it is considered as 'Iact oI nature, a thing that is part oI the natural world, and
thereIore, cannot be patented.
The third things that cannot be patented are abstract ideas. These are ideas that only
existed in our mind and cannot be able to percept by our senses. Let us take Ior example, iI
someone Iormulated an idea oI Iinding cure Ior prostate cancer, unless the idea has been
successIully applied to the real world, the inventor cannot prohibit other person, institutions, or
Iacilities to tackle or make research Ior the said idea Ior it is only abstractcannot be seen,
smell, touched, or Ieltand thus, cannot be patented.

ene Patenting

We discussed on the earlier page the scope oI patenting. Now, the next question is, does
gene can be qualiIied as patentable or not? It is said early that laws oI nature and naturally
occurring phenomenon are not patentable. And we can consider that genes are laws oI nature,
and its processes are natural phenomena. Even iI this is the case, we still recognize this type oI
patenting as legal and justiIied. That is where the Iundamental rule is broken. We should not and
could not patent genes because it is a part oI nature we live in.
As Crichton stated, '. . . Genes are Iact oI nature. like gravity, sunlight, or leaves on trees,
genes exist in the natural world. Facts on nature can`t be owned. You can own a test Ior a gene,
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or a drug that aIIects a gene, but not the gene itselI. You can own treatment Ior a disease, but not
the disease itselI (2006).
Why can someone patent a gene iI it belongs to nature, iI it belongs to us? The Iact that
someone can own a gene is too absurd to be true. And by these Iact, they can easily get the genes
by acquiring it Irom us, which is very unethical.
We could easily patent things other than gene because it gives us opportunity to create
other versions oI the said product. II someone patented an electric Ian, it does not mean that no
other person can create electric Ian other than his or her own version oI electric Ian. It is just that
anyone can create another electric Ian, but diIIerent model, and not identical to my invention
(ibid, 2006). But since the gene that we patent have only one type, we can never make
improvements or other versions Irom it. It is an entity that`s inside us and by manipulating it, we
violate the law. Crichton states that this situation is like having patent on noses. We can do
anything with our body except with noses because it is patented and someone already owns that
said nose.

aw on ene Patent
Tissue can be considered as one oI the most important specimen in research studies.
From these, we can get a sample oI our genes so that it may be studied. But Proper law must be
established due to the Iact that there is still no proper enIorcement in the use oI the said
specimen. Crichton, again states that:
Under present law, iI somebody takes my picture, I have rights Iorever in
the use oI that photo. Twenty years later, iI somebody publishes it or puts it in an
advertisement, I still have rights. But iI somebody takes my tissuea part oI my
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physical bodyI have no rights. This means that I have more rights over my
image than I have over the actual tissues oI my body (2006).
The current law considers that iI a tissue came out oI our system, it is already considered
as trash and not property oI the person to whom it belongs. But many oI us would not like that.
We have supreme rights over our body and composition that no law could prohibit that natural
sense oI ownership.