Owning Genes: Ownership Comes With Responsibilities

On CBS’s 60 Minutes show Sunday night, they did a segment on corporations patenting and owning human genes. The central controversy is whether it is right for corporations to be able to have the ability to own human genes. The American Civil Liberties Union (ACLU) is pressing a lawsuit against a company that has a patent on a/some human genes that indicate a predisposition for breast cancer. The company has developed a test that allows doctors and patients to determine if a woman has the genetic marker genes that predispose them to breast cancer. This company has decided that the test is fairly market-priced at around $3,000.00. This of course can cause problems or obstacles to patients that cannot afford the test, particularly where insurance companies will not cover the cost of such tests. This is nothing new in lots of medical treatment areas, but there are even more facets to the issue than just the cost of the test.

The patent holding company is also aggressively enforcing its rights to these human genes by prohibiting any other company or research entity from using the genes to investigate other tests, procedures, treatments, or even basic scientific knowledge about the genes. Their position is that since they own the genes that no one else can use them for any purpose or in any manner without their permission and approval.

The ACLU’s position is that the US Patent Office granted the patent in error, since the genes represent a natural creation and as such is not patentable. The test procedure that the company created may be patentable, but it patent would not grant the company any ownership rights over the genes themselves and would it allow them to prohibit others from using the genes for their research and development purposes. The case will be set a major precedent in patent law when it is finally settled, which may require the lawsuit to be taken to the Supreme Court.

I think that the ACLU missed the better position to litigate. Instead of questioning the company’s right of ownership, the ALCU should have brought a suit against the company with charges of product-liability and criminal-negligence. Since the company owns the genes, they must be responsible for their product and its consequences to the public. So given that these genes contribute to a predisposition or even cause breast cancer, the company is liable for such cancer cases. They also are responsible for their negligence in correcting the problem that their genes produce, failing to warn the public and individuals that they are at risk from these defective products, and that they must assume full fiduciary responsibility for correcting these problems. With respect to the individuals that they have harmed, the company should be required to also pay punitive damages.

I think that a jury of fair-minded American citizens would be likely to agree that this company should be and would be held responsible for their product, and that their irresponsible actions to date should be made an example of to the corporate world that in the United States no company will be permitted to exercise ownership rights without complete and absolute accountability for their product and its consequences to the public. After an example is made of the company in the breast cancer genes case, I think it would be reasonable for the US Government to offer a amnesty period for other companies that hold such human gene patents to rescind their patent ownership claims and turn any and all future ownership right over to public-domain ownership.

The executives of the company that loses the court case would be unfortunately completely wiped out, or we should do all that we can to insure that result; but the long-term benefit to the American people and surely to the citizens of all countries would be well worth their inconvenience. After all it seems only fair that they should pay for their poor judgment, management, and sense of responsibility.