Patenting of Genes: Discoveries or Inventions?

Abstract

Since the 1980s, patent offices in most developed countries (with some exceptions, particularly in Latin America) have been granting patents over both genomic and modified deoxyribonucleic acid (DNA) sequences based on the legal understanding of the difference between invention and discovery, which does not necessarily accord with the same concepts among scientists. Recent litigation in USA has, however, cast uncertainty over this conclusion, particularly with respect to genomic DNA sequences. Patents over the process of using these sequences to identify the risk of contracting a disease is even more uncertain. Controversy continues over the role that both DNA sequence and associated method patents play in encouraging innovation. This is particularly true in clinical genetics in which the patent holder is rarely the first to make a genetic test available to patients.

Key Concepts:

  • The legal understanding of the difference between an ‘invention’ and a ‘discovery’ does not correspond to how scientists appreciate the difference.

  • Patent offices in most developed countries have been granting patents over both DNA sequences (in both genomic and modified form such as cDNA) and methods of using them since the 1980s.

  • Only recently have these been challenged in court in USA with uncertain results.

Keywords: patents; DNA sequence; clinical genetics; inventions; discovery; research

References

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Further Reading

Aymé S, Matthijs G and Soini S (2008) Patenting and licensing in genetic testing. European Journal of Human Genetics 16: 405–411.

Barton JH (2000) Rational limits on genomic patents. Nature Biotechnology 18: 805.

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How to Cite close
Gold, E Richard(May 2012) Patenting of Genes: Discoveries or Inventions?. In: eLS. John Wiley & Sons Ltd, Chichester. http://www.els.net [doi: 10.1002/9780470015902.a0005183.pub2]