Who owns you?

When should a company be able to own a patent over something which exists naturally? Never.

Last week the ABC’s flagship investigative journalism program 4 Corners took a look at gene patents. For most Australian’s this issue isn’t even on their radar - but it should be.

There’s a landmark legal action in Australia at the moment challenging a patent over breast cancer gene BRCA1. It comes not far behind a similar action in the US which found no patent should have been granted in that situation.

The reason for the court action is to remove patents from human genes. And rightly so.

A patent means protected ownership for a defined period of time and includes exclusive use and ability to prohibit use or development by others.

You might be surprised to learn that about 20 per cent of human genes are patented in Australia, so this case will be watched closely by all sides and around the world. It will have significant impacts either way.

The argument from the biotechnology companies is that a lack of patent protection over the genes will limit their enthusiasm for research and innovation. They say that if they can’t patent genes - not just human, but plant genes and most other biological material - they won’t be able to cash in on the commercial windfall of any product they develop in relation to that biological material.

I’m a big supporter of enterprise, investment and innovation but I struggle to see why the companies are fighting so hard here. No one is seeking to stop them patenting and protecting their research product - in other words any “tests” or products etc derived from their work around the genes or other biological material.

If they’ve invented a treatment or an identification test, or whatever, then they deserve the benefits from that; and they also deserve the commercial protection a patent provides so they can maintain a good portion of the market before others who haven’t done the early leg work can cash in, riding on their coat tails.

BUT patenting a gene is wrong.

Patenting biological material that already exists in a particular form in nature is wrong.

Patents recognise invention - not discovery of something which already exists.