On June 13, 2013, in the case of the Association for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court of the United States ruled that human genes cannot be patented in the U.S. because DNA is a “product of nature.” The Supreme Court’s ruling did allow that DNA manipulated in a lab is eligible to be patented because DNA sequences altered by humans are not found in nature.
Because organisms with modified genetic sequences have been viewed as machines their production has been protected under patent law. Therefore, like other machines, the only way to make a profit from their production has been through control of the means and manner of production. It would make no sense to go to all the trouble of developing a new mousetrap if the buyer could simply reproduce it for their own use or sale to others. Therefore companies in the business, like Monsanto, have gone to great lengths both physically and contractually to make sure that any farmer who buys their transgenic seed not be able to use the crop from that seed to plant more crops. Under this system, farmers must buy seed every year from Monsanto to get the advantage of using their seed and Monsanto must maintain huge acreages of land solely for the purpose of producing seed for the next year. The investment and the infrastructure on Monsanto’s part are gigantic and they must take the risk that their product will be in demand the following year. Also the farmer takes a risk, as do his neighbors, that if there is cross pollination with other crops, Monsanto may make a charge of patent infringement on anyone downwind.
However, consider an alternative approach. A genetic sequence from a synthetic biology viewpoint is only a sequence of the letters that make up the base pairs in all life on earth. Just as the 26 letters in the Roman alphabet can be combined and rearranged to make a novel which is protected by copyright, the four letters of the DNA alphabet can be combined and rearranged to make a gene. Viewed this way, genes should be protected under copyright law rather than patent law. The advantages to producers of new genes, buyers of these organisms, and society as a whole would be enormous.
For the producer of the modified organism, the advantage would be that merely the creation of the new seed or fish or tree is all that is required to establish a right to be reimbursed. (Note: In case there might be any concern about someone claiming independent development, it is possible not only to insert new active gene sequences in an organism but also coded inactive sequences that would establish ownership, much as a copyright © in a book.) It would no longer be necessary for the creator of the new organism to “publish” every copy. Just like with print, anyone who makes a copy would owe a fee so the originator would encourage people to make copies. The buyers of these organisms could decide how many to sell as product (at which time the fee would be collected) and how many to use to make more copies. They might even sell their produce to others so they could make more copies (for which they would pay a fee to the originator). And society would benefit because distribution of the best products for each area would flourish and the cost to develop new organisms would be low enough that entry of competitors would be enhanced, thus keeping costs to consumers in balance.
If someone can work with companies like Monsanto to understand the advantages of the patent system, including a much longer period of protection (80 years vs 17), much lower capital investment in infrastructure, and a much larger market for additional products perhaps they might champion this approach instead of opposing it. Of course in order for this to work a system for identifying products for sale at a major middleman level (e.g. Archer Daniels Midland) would need to be implemented and a standard for testing and collection of fees would need to be developed at a national and probably an international level. However since most crops for the general market flow through a relatively small number of middle men, this choke point should easily catch the vast majority of products on their way to market.
It is also possible that the profitability of some of the small developers for whom the copyright system would have wide appeal could overtake the large companies, just as Microsoft overtook IBM, and implement the system without their consent.