Obama and gene ownership: Who has a right to nature's DNA?

In two settings last week, the Obama administration took on the issue of gene ownership, or the proprietary right to the ideas embedded in the genetic code of humans, plants, and animals.

The first setting was in a federal court case. The US Justice Department offered a legal brief Friday that reversed longstanding government policy and asserted that scientific discoveries of existing genes cannot be patented for private gain.

The second setting was at a United Nations meeting about biological diversity held in Nagoya, Japan, and attended by some 190 nations.

There the US delegation endorsed a new international agreement concluded Saturday that calls for any profits from the genetic resources found in a country or used by indigenous people – such as a derivative from a local plant to make a new cosmetic – to be shared “fairly and equitably” with them.

The agreement, known as the Nagoya Protocols, was vague enough for the US and other countries with biotech companies doing genetic research to not go along with it. And the US Senate has yet to ratify the underlying treaty, the UN Convention on Biodiversity, which came into force in 1993.

These US stances on gene ownership once again raise difficult questions about exploiting nature’s most basic living material.

Does a gene or any other building block of a species evolved by natural selection belong to all mankind? Can it be claimed by a company that first isolated it and found a use for it? Does it belong to the nation or local people where the genetic material originated?

For years, as scientific research has exploded with new uses for genetic material, the US government has supported patents for many of these scientific “discoveries” in nature. Government recognized that a company could invent a process to extract a gene or reveal its properties, and thus gave a right to the use of that gene in a new product.

But in the friend-of-the-court brief filed in a case involving a new cancer drug derived from gene research, the Obama Justice Department changed the official US stance.

It told the court: “The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is ‘isolated’ from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth.”

This argument implies that the genetic code of existing material life, which consists of complex ideas in organizing atoms and molecules, is simply a given – available to all. (Greatly altering a natural gene, however, might still be considered patentable.)

Yet developing countries such as Brazil and India want some sort of reward for the commercial use of genes found in their biodiverse landscapes. They refer to such uses without compensation as “biopiracy.” And they won recognition of their claim in the Nagoya Protocols, even if that pact does not yet seem to be globally enforceable.

The claim that a particular species “belongs” to a country or tribe, even though most plants and animals probably existed there long before humans arrived, is an odd type of nationalism.

The claim is also difficult in that it tries to assign some sort of market value to the basic parts of a particular ecosystem. If a gene’s use can be measured in long-term commercial value, can a price then be negotiated with the people who live near that gene? That would be far-fetched and a difficult exercise – as the Obama administration appears to recognize.

Most of all, the genetic code of a species is really a combination of ideas that can likely be duplicated in the lab as more advances are made in science. As with the debate over originality of ideas in many patent disputes, can an idea that is already being expressed be claimed by one person, a company, or even an entire nation?

Gene research is bringing many useful products to markets, and such inventiveness needs the protection of patents to justify the cost of such research. But both biotech companies and governments must recognize that ideas created in nature and that have existed separate from human society cannot be owned. To claim their ownership would be to hinder their continued growth – and usefulness for all.

As US District Court Judge Robert Sweet ruled last March in that legal court suit – and with which the Justice Department now agrees: “Uncovering a law of nature is not creating an invention.”