Richard Gold

Richard Gold McGill University

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McGill Reporter
October 25, 2001 - Volume 34 Number 04
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Richard Gold

Patents and peoples' parts

A recent addition to the Faculty of Law and the recipient of the new BCE Chair in e-Governance, Richard Gold studies how property law applies to the rapidly advancing, ever-changing world of technology.

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Much of his work focuses on Internet businesses, but he's also interested in cells. Your cells.

Actually, he's more interested in the other people who are interested in your cells. Gene patenting may not be new (an oil-eating bacterium was first patented back in 1980), but it's an increasingly hot topic.

While doing his law degree at the University of Michigan in the early '90s, Gold became intrigued by a California case: a man suffering from rare hairy-cell leukemia was suing for the property rights to his spleen cells.

Doctors had removed the cells, which they believed produced a cancer-fighting chemical, then patented them. The patient reasoned that if anyone was going to make money selling his cells, it should be him.

The case spurred Gold to write his thesis on this strange new legal world, later published as the book Body Parts: Property Rights & The Ownership of Human Biological Materials. (The hairy-cell leukemia patient, by the way, lost his case -- but his spleen cells turned out to be completely useless as a product.)

Gene-patenting controversy rages on today. The U.S.-based firm Myriad Genetics, for example, holds patents to two specific breast- and ovarian-cancer-related genes. Myriad also patented an expensive lab test (over $2,800 U.S. per test) used to compare a patient's genes to these higher-risk genes.

Several Canadian provincial governments offer patients a similar test (same idea, different technique -- and at less than half the cost of Myriad's procedure), but Myriad is insisting that only their test be used.

It's tempting to brand such practices as simply greedy, but Gold argues that gene patenting has ramifications which run much deeper than right or wrong. "Yes, patenting is a way for companies to make money," he says, "but, in these days of diminishing funding, patenting is also thought to provide an incentive for people to do the research [they might not otherwise be able to do] and bring it to market."

The downside: the rush to market may come at the expense of adequate testing, and there are cases where the patients who first supplied the genetic material are later denied access to the patented product. But neither represent the biggest threat posed by gene patenting.

"By giving financial incentive, the patents focus attention on genetic research. So it's going to skew research toward looking at the genetic component.

"Consequently, through the lack of equal incentive on the other side, people will be doing less public health research -- and, historically, public health research [diet, hygiene] has extended our lives more than drugs and vaccines."

Studies show, for example, that the risk of neural tube defects in infants can be greatly reduced if women maintain a high folic acid intake (i.e., eat lots of bananas) during the first two months of pregnancy. An important break-through, yes, but without the potential for a big financial payoff.

"As a company involved in genetic research, if you discover that eating bananas will cure whatever disease, you make no money. You might have contributed a great service, but there's no profit.

"Gene-patenting has swung off the balance of research."

Gold suggests that the current challenge is to find ways to correct this imbalance, whether through government taxation of genetic companies (and redistributing the funds to public health research), or by other means.

"It's not that genetic patenting is good or bad," he stresses. "But genetic patenting has an effect, and that effect has to be dealt with."

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