In Wednesday’s Sydney Morning Herald, Malcolm Turnbull again is pronouncing on a subject outside of his shadow-bench responsibilities; this time about the patenting of genes. He is following a growing trend of the parliament supporting rent seeking — encouraging parasitical business interests to take profits from the risk taking and honest effort of others.

A campaign to restrict patents covering genes has been supported in Australia by pathologists and single-interest groups, and now a couple of parliamentarians, including Turnbull, are planning to introduce a private members’ bill to prevent more gene patents being granted. There is a quixotic aspect in this, and a fair amount of misunderstanding about the patent system, but a major cause of all this activity is probably the desire by some pathologists and medical researchers to opt out of the patent system.

Basically, it all comes back to rent seeking; riding on the coat-tails of others who take bigger risks than the rent seeker is prepared to do.

In 1559 in England, one of the first patents for what we today would consider an invention was granted to Italian Giacopo Acontio. He prefaced his application for protection by writing that,

“… nothing is more honest than that those who by searching have found out things useful to the public should have some fruit of their rights and labours, as meanwhile they abandon all other modes of gain, are at much expense in experiments, and often sustain much loss.”

He went on to say that he had invented furnaces and wheel-machines that others would copy without remunerating him unless he were to be protected and apparently his patent was granted to him in September 1565.

This is the basic problem with stopping patents for fields of technology involving genes. It sucks money out of the system, because any company that invests money in developing a new genetic test for br-ast cancer, for instance, will be unable to recover this investment once third parties come along and copy their process without themselves paying many of the costs involved.

It can cost about $100 million to put a new pharmaceutical on the market. Genetic tests carried out by pathologists currently cost much less than this to develop and market, but the pressures for the high level of research effort and monitoring of their safety and effectiveness has yet to become much of an issue in this industry. Some women are having their br-asts removed when they find out a genetic test shows they are at high risk of eventually developing cancer. But they do so relying on the scientific claims by the developers of these genetic tests, and the pathologists and doctors who interpret them.

It is inevitable for errors to occur, and so at some point there will be demands for more detailed testing and proof of the efficiency of these tests, which will have to be funded from somewhere. The huge costs involved in developing new pharmaceuticals is a result of these same demands, and the same pressure inevitably will extend to genetic tests.

The patent system is a major mechanism that allows companies to create new treatments, pay the costs to prove their efficiency and safety, and still make a profit, without parasitical competitors ripping off their efforts.

There is a quixotic aspect in this campaign to stop gene patenting too. Some campaigners say they just want to stop patents for genes because genes occur in nature, and so should not be covered by patents (which after all are only granted for brand new things), but they do not want to stop patents for genetic testing kits or processes.

As an experienced patent attorney, I understand this, but the facts lead to other conclusions. There is a long tradition of patenting natural products, where the invention is the selection or separation of a product from nature. Most patents for micro-organisms are for a specific strain of micro-organism that can come from a soil sample for example; and the inventor selects that specific strain for some useful purpose.

It is true that patents cannot protect discoveries; you can patent a new wind turbine, but not the wind itself. In fact, patents that only cover (or “claim”) a specific DNA gene sequence are often poor quality patents, since it is legally necessary that there be an actual invention claimed; some kind of a vendible product for instance.

So there should be claims in the patent for a method of testing for the presence of a br-ast cancer causing gene utilising a probe having a specific gene sequence … etc, or for a test kit that utilises a specific DNA sequence. These campaigners often obsess about the manner in which the patent has been drafted; the undesirable shortcut of claiming just a gene sequence is too often used, resulting in poor quality patents.

Remember that the Patent Office does not guarantee the validity of any patent it grants; only a court can do that. The Patent Office itself is under stress from the huge number of applications being filed these days, and is also obligated to give the benefit of any doubt to the patent applicant. It is quixotic to quibble about the form of the wording used in some patent claims, if you do not want to actually stop patents applying to specific gene related industries. The courts will eventually sort out these sloppy patent drafting practices.

Some campaigners also rely of the mystical nature of genes — apparently, according to Malcolm Turnbull, they are where a person’s soul resides. Well, that may be the case; I certainly am not an expert in souls like Turnbull, but damaging the medical industry in Australia by complicating the legal procedures involved will cause real difficulties. We are just not weighing souls by demanding exceptions to patent coverage — we are affecting medical research, and patients who need medical cures.

It does no good in the long term to encourage rent seeking by damaging the inventors and companies who are trying to bring genetic products to the marketplace. We can cause real harm by putting unnecessary complications into the patent system, just to satisfy short-term rent-seeking business interests, or to debate philosophy on the floor of parliament.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey