Although the term “commons” traditionally refers to shared property such as a city plaza or communal pastureland, the notion also applies to shared knowledge resources. We would do well to remember the 1799 discovery of the Rosetta stone, the remarkable tablet that offered the same long passage of text sequentially in three ancient languages. The Rosetta stone provided linguists over many ensuing years the seminal key to finally unlock the previously undecipherable hieroglyphics of ancient Egypt. Imagine if someone had proposed to chop the stone tablet into separate proprietary chunks. Such a plan would clearly have diminished, if not destroyed, the central value of the resource.
Sadly though, that is exactly what is happening now with the human genome. Companies must think about their financial bottom line. For today’s crop of genomics firms, especially given the absence of clear rules, this means obtaining patents-as many as possible and with the broadest possible claims. The tens of thousands of human gene-related patents pending have polarized an already divisive situation. On the one hand, companies investing millions of research dollars argue that they need to protect their intellectual property. Without patents, they say, the private sector won’t ante up the billions of dollars needed to stimulate the rapid development of genome-based healthcare products. On the other hand, the patenting frenzy is kindling understandable fears that only a few corporations will end up controlling a resource of priceless value to humanity. Some, like biologist Jonathan King at MIT, who is circulating a petition to this effect, believe the answer is to prohibit patents on genes.
Between these views is a gray area as big as the Pacific Ocean. As University of Michigan legal scholars Michael Heller and Rebecca Eisenberg explain it, the key question is how far “upstream” or “downstream” proprietary rights ought to be allowed along the path to product development. The problem is that almost any piece of the genome can be seen to have some commercial value. But issuing patents too far upstream could leave the path to drug development looking like a pockmarked road with a nightmare of tollbooths and barricades.
While the specifics can admittedly be confusing, at root there is nothing particularly complicated about the debate over patenting and the human genome. The key is to treat this as a vital public policy issue rather than a strictly legal or scientific one. The first thing to remember is that the human genome is a precious inheritance of the human species. For this reason alone, it deserves special treatment. Second, the project to decode the human genome has, for more than a decade, been the mission of a publicly funded project that will ultimately cost some $3 billion. Given this outlay of funds by taxpayers, the public has every right to demand that the genome is used wisely and not simply handed over for private gain. And finally, we must recognize that-with the recent, momentous milestone of a completed working draft of the human genome-the time to act is now. We can save ourselves a lot of bitter litigation, money and acrimony (and speed the next generation of drugs and treatments to market) if we adopt policies that balance the powerful drive of commercial interests with the public interest.