The New York Times headline this past weekend seemed too good to be true: “U.S. Says Genes Should Not Be Eligible for Patents.” In a friend-of-the-court brief filed in the landmark breast cancer gene case (now in appeal), the U.S. Department of Justice (DOJ) said patents on human and other genes should not be awarded because they are products of nature, not human inventions, and acknowledged that this position went against current practice at the U.S. Patent and Trademark Office.
Indeed, it does.
Many in the seed world are asking, What about plant genes? While the government sides with biotechnology interests in agreeing that patents on genetically engineered plants are warranted, the brief signals a crucial opportunity for discussion on abuses of the current patent system as it pertains to plant research. For example, broad patent claims limit breeders’ access to important germplasm. According to Professor Tom Michaels at the University of Guelph, patents on seed-reproducing plants not only limit use of these varieties in breeding programs, but limit the usefulness of unrelated germplasm that duplicates a claimed characteristic.
At this point in the discussion, we need further investigation into patent claims on plant DNA naturally occurring in nature, material the DOJ explicitly describes as not eligible for patents:
… the patent laws embrace gene replacement therapies, engineered biologic drugs, methods of modifying the properties of plants or generating biofuels, and similar advanced applications of biotechnology. Crossing the threshold of section 101, however, [of patent law] requires something more than identifying and isolating what has always existed in nature, no matter how difficult or useful that discovery may be.
The time is also ripe for an investigation into the use of restrictive licensing agreements, and not just in the context of biotechnology products. Licensing agreements have been in the press lately regarding USDA and industry research, as we wrote about last week. But the use of these agreements, allegedly for products absent patents (see our blog post on Seminis Technology Agreements), demands the attention of the U.S. Department of Justice.