Deserving the last great gift

If there is part of us that we equate with our "self," it is surely the brain. What feelings and expectations, then, are stirred if we decide to give this part of ourselves--or the brain of a loved one--to be sliced, labeled, frozen, and shipped to a laboratory somewhere in the world to be used for research? The director of one of the world's largest brain banks discusses the ethical challenges, implied obligations, and standards of behavior that brain banks must meet to earn and retain the trust of those who give the last great gift--one now indispensable for progress against illnesses ranging from Alzheimer's disease to schizophrenia.

Comment: DNA as property: implications on the constitutionality of DNA dragnets

Joe Smith is a maintenance worker at County Hospital. One morning he reported to work to find an array of law enforcement vehicles and personnel scattered about the premises. He proceeded to his locker to prepare for work and was confronted by a policeman. Apparently an elderly female patient was sexually assaulted late one night during the previous week. The police officer informed Joe that all male employees were required to give a blood sample to rule out their implication in the assault. Joe was apprehensive and stated that because he worked first shift, he could not possibly have been involved. The police officer told Joe that a warrant would be obtained if he resisted. Reluctantly, Joe agreed, though he did not understand how a sample of his blood could help this investigation. Was Joe required to give this blood sample, and further, should he have been afforded any constitutional protections?

The challenge of for-profit health care conversions

Most hospitals are considered charities under common law because they were established for the benefit of the public. The law granted them benefits, but also imposed duties. Under the cy-pres doctrine, if a charitable purpose becomes obsolete or incapable of being carried out, the court could modify those purposes to meet current needs of the organization and the community. Modern laws attempt to find a purpose as near as possible to original purposes set up by donors. In the case of hospital conversion, some regulators say assets must be used to support hospital health care, while others say they can be used in the broad sense of health care. That has been a continuing conflict between communities and regulators.

Since 1996, 30 conversion statutes have been enacted, covering hospitals, HMOs, and insurers.

Patent law--balancing profit maximization and public access to technology

This article addresses the contemporary issue of balancing the need for patent protection for intellectual property with the resulting restriction of public access to new technology. The author argues that patent law protects private property rights rather than creating monopolies. Additionally, the author discusses how restricting access to patented technology, such as pharmaceuticals, can affect public health problems, such as the HIV/AIDS epidemic in developing nations. The author then concludes with some proposals for making patented technology available to people in developing nations who need access to such technology but who are unable to afford its high costs due to patent protection.

Public vs. proprietary science: a fruitful tension?

The authors examine the presumption that basic scientific research is most effectively utilized when the findings of that research are openly disseminated without significant restriction, while research with more practical application should be the prerogative of private enterprise. However, many fields, including molecular biology generally and genomics in particular, lie in the intersection between basic research and application. Moreover, institutional boundaries that once reasonably sharply demarcated basic research from technological development have grown porous, with more academic research finding application in industry. The authors consider the Human Genome Project and rival industry sequencing efforts as a case in point of the new political economy of scientific research. Since the inception of the Human Genome Project, there has been general agreement among researchers that the project would be most advantageous to science if the sequence data were made publicly available, quickly and without restriction. Many of these arrangements required federal agencies and some universities to "maneuver around" the Bayh-Dole Act. In several cases, most notably genomic sequences and the SNPs (i.e., single nucleotide polymorphisms) consortium, it was the pharmaceutical industry that initiated or helped enable the project to ensure open and unencumbered access to information, the type of access that has historically been the provenance of academia and the raison d'être of academic research. The authors conclude by reasserting the value of public science as a broadly valuable and enabling social commitment, not limited simply to the products or technologies it spawns.

A brief guide to understanding patentability and the meaning of patents

This author provides a brief overview to the U.S. patent system with respect to DNA-based or gene patents, examines the statutory requirements for the U.S. Patent and Trademark Office (USPTO) and its processes of review, and explains how this system is implemented in the issue or decline of a patent. The author describes the important role played by the courts in their continuing reinterpretation and application of the patent law. He notes that many issues raised in discussions about the perceived benefits to society or general concerns arising from the patenting of gene sequences actually pertain to matters of enforcement and licensing of patents. These aspects, the author notes, lie outside of the USPTO's purview. Social questions about access to patented subject matter-such as the practice of patented gene-based diagnostic tests-must be addressed in other forums.

Human gene patents

The concept of a patent on a human gene seems foreign to most people. Even those who understand the fundamentals of the patent system seem bewildered and confused by many issues relating to human genes. This article describes the scope and limitations of gene patents and the types of exemptions that have been proposed or allowed. It addresses and clarifies these and other issues, including the often reported and misdirected question, Who "owns" one's genes? The paper reviews the historical origins of patents as a mechanism to provide incentives for innovation. It also discusses the legal criteria unambiguously supporting patenting of human genes that are isolated and purified apart from their naturally occurring context. Concerning enforcement and issues related to academic research, there is no U.S. statutory exemption for non-commercial research on patented subject matter, but a narrow, judicially-created exemption does permit use of patented subject matter for non-commercial purposes. Patents and licenses on gene-based diagnostic tests are properly enforceable and do not permit academic or other clinical practitioners to practice such tests without license or other authorization from the patent holder. The paper concludes that an effective legal system cannot draw sharp distinctions that some genes or uses are patentable to some parties while other genes are not. In addition, precluding certain genes from patentability would be shortsighted in that it would create prohibitions that might well be regretted in the future.

Patents, genomics, research, and diagnostics

Two kinds of currently available genomic patents may significantly interfere with medical research: (1) patents such as those on specific single nucleotide polymorphisms (SNPs), which may include claims that control the inference of phenotypic characteristics from specific genotypes, and (2) patents on computer-based genomic information, databases, or manipulation procedures. These will create more serious encumbrances than will patents on expressed sequence tags (ESTs). Two approaches should be considered vis-à-vis these genomic patents: (1) Reconsideration and redefinition of the recent extensions of patentable subject matter into more and more intangible areas. This could be pursued by legislation or by test litigation to seek Supreme Court reversal of certain of the decisions of the Court of Appeals for the Federal Circuit (CAFC). (2) A narrow legislative exemption protecting the ability to use SNPs and phenotypic-genotypic relationships in medical research, including contexts in which medical research and clinical practice are substantially intertwined.

The economics of human gene patents

The author examines patents on DNA sequences, including data on gene sequence grants issued by the PTO during a 33-month period from 1998 to 2001. Policy supporting patents on DNA sequences and other elemental information that are far "upstream" in the product development pathway is contrasted with the economic bases and rationale for patents to pharmaceuticals, which require a protracted and expensive process of development and testing but that can be relatively cheaply and competitively imitated once they are approved and disclosed. How to allocate appropriately the economic returns among the upstream and downstream inventors is a challenging problem for economic theory, as well as for contemporary biomedical research, and is perhaps most familiarly embodied in licensing and cross-licensing disputes involving "reach-through" and "reach-back" rights. Such disputes can generate enormous transaction costs. They may become increasingly frequent and vexing with respect to the scope and overlap of patent claims on human gene sequences. On the basis of his analyses, the author argues that genome patent claims should be interpreted narrowly. He is particularly concerned with ensuring that the development of new (therapeutic) products is not blocked or retarded by a multiplicity of prior patent claims, but he is pessimistic that the diversity of participants in biotechnology will provide a "sufficient community of interest to organize comprehensive low-royalty cross-licensing" regimes. Accordingly, he suggests mandatory arbitration as one mechanism for resolving such problems.