INTELLECTUAL PROPERTY LAW
Panahov Elman Elchin
Master’s student at the Department of Intellectual Property Law, Faculty of Law, BSU
E-mail: [email protected]
In the realm of modern biotechnology, the elucidation of the human genome has ushered in an era of unprecedented scientific discovery and innovation. This remarkable feat has not only deepened our understanding of human biology but has also presented unique opportunities and challenges at the intersection of science, law, and ethics. Central to these discussions is the practice of patenting human genes, a contentious issue that has sparked debates on the ownership, accessibility, and ethical implications of genetic information.
The patenting of human genes represents a significant milestone in the history of intellectual property law and biomedical innovation. Stemming from the groundbreaking decision in the case of Diamond v. Chakrabarty in 1980, which ruled that genetically modified organisms could be patented, the practice of gene patenting has expanded to encompass not only artificially engineered genes but also naturally occurring human genes. This expansion has ignited a myriad of ethical, legal, and scientific debates, challenging conventional notions of ownership, access, and the commercialization of genetic information.
At the heart of these debates lies the tension between innovation and accessibility. Proponents argue that gene patents incentivize research and development, stimulating scientific progress and driving medical breakthroughs. By granting exclusive rights to inventors or organizations, gene patents provide a financial incentive for investment in genetic research, thereby fostering innovation in the field of biotechnology. Moreover, proponents contend that gene patents facilitate the translation of scientific discoveries into tangible products and therapies, ultimately benefiting patients and society at large.
However, critics raise valid concerns regarding the potential negative consequences of gene patenting. One of the primary concerns revolves around the issue of accessibility and affordability of genetic testing and healthcare. Gene patents can create monopolies that restrict access to diagnostic tests, treatments, and technologies, thereby exacerbating health inequities and limiting patient choice. Moreover, gene patents have the potential to stifle scientific research and innovation by impeding the free exchange of genetic information and inhibiting collaborative efforts among researchers and institutions.
Furthermore, the ethical implications of gene patenting extend beyond issues of accessibility and affordability to encompass broader concerns related to human dignity, autonomy, and justice. The commodification of genetic information raises questions about the ownership and control of the human genome, challenging fundamental principles of privacy and consent. Additionally, the potential for discrimination and exploitation based on genetic information underscores the need for robust ethical safeguards to protect individuals and vulnerable populations.
The emergence of two new technologies in the second half of the 20th century, namely the discovery of the DNA double helix and the invention of semiconductor chips, led to inventions related to biotechnology and computer science. These new technologies have challenged the rules and doctrines of patent law in the US and Europe regarding their ability to grant patents for such new inventions. Moreover, as new industries emerged from these new technologies and these new industries became new drivers of the national and global economy, patent applications for such new inventions grew proportionately. For example, since the mid-20th century, advances in knowledge of molecular biology have led to the creation of two new industries: biotechnology and pharmaceuticals. According to Sherkow and Greely, “these industrial developments could not exist without the support of legal structures.” [1] Without new guidance directly addressing these new inventions, patent offices have continued to flexibly apply existing rules and doctrine to ensure the patentability of these new inventions.