Legal, Social And Ethical Implications of Gene Patenting

This article aims to brief on what it means to patent a gene. When gene patenting is taken into consideration, a question arises whether a gene is an invention or not, and what are the grounds for granting a patent, or a discovery. Segregating the actual gene itself is a great discovery and the limelights should be focused upon gene invention and not patenting. There is little evidence that the fears about gene patenting placed fundamental restraints on In-Depth Research and Clinical Medicine have come to the realization. People should be alert to ensure that the social benefits of patenting human genes are maintained and limited. 

A Gene patent is a patent or is an invention in the meadows of a branch of natural science. It is that natural science in which law allows the patent holder to exclude others from making, selling, using, or importing the secured invention for a limited period. This article is important to understand the process of how statistics are obtained from a gene which can be the subject of a patent, it shall also help develop new ways to cross-examine a gene sequence which can be patented as this leads to a commercial drive and reinvestment in new resources to improving new scientific testing strategies. This paper’s content is divided into 5 parts- Introduction, Pros And Cons of Gene patenting, In-Depth Analysis of gene patenting, Gene Patenting In India, and Gene Patenting In United States (The Supreme Court decision in the Myriad case).


A Gene patent is a patent or is an invention in the meadows of the branch of natural science. It is that natural science in which law allows the patent holder to exclude others from making, selling, using or importing the secured invention for a limited period of time. Around 30,000 human beings have been patented so far in the United States of America. The scope of technology has advanced to a substantial extent after the historic divulgence of the structure of DNA Molecule. Since then various scientists around the globe have been laying efforts for identifying arrangement of molecules and recognizing their functions which will allow them to achieve expected results. 

In-Depth Analysis Of Gene Patenting

DNA is basically a long double-stranded molecule with a series of paired bases, with each strand being assembled on a sugar-phosphate backbone and oriented in opposite directions (denoted 5′ to 3′ and 3′ to 5′). The four recurring bases are A, G, C, and T (Adenine, Guanine, Cytosine and Thymine) and the strands are complementary to each other where A complements T and G complements C. A gene is a segment of DNA that encodes for a particular polypeptide. The first step is the transcription process which mainly involves conversion of the gene into a strand of mRNA. mRNA is similar to DNA except that it is single stranded, and has an Uracil base instead of the Thymine. The mRNA is then spliced (split) where the non-coding portions are removed and subsequently undergoes a process called translation for creating polypeptides.

Now the mRNA will undergo a process called translation with the assistance of tRNA and enzymes to form a polypeptide strand.

The mRNA strand acts as a code where three bases form a ‘codon’ and therefore, code for a particular amino acid. In this way, the entire mRNA codes for a polypeptide strand. Often, the template RNA is reversed activity transcribed by the researcher’s mistreatment of AN protein referred to as polymerase in AN object to get a complementary sequence referred to as cDNA that could be a lot of feasible types and empty the non-coding parts. Constant is often seen in many patent claims. cDNA is nothing, however, a complement of the template RNA and doesn’t take issue considerably in its informational content, though it does not exist per se in nature. Patent grants what is referred to as a negative right which suggests the proper enjoyment of others from mistreatment of the claimed invention while not permission. A patent owner could address the government via lawsuits for infringement and should use its judicial powers to dam others from creating, using, or commercializing the invention and together damage from people who infringe them. 

A patent does not grant its owner the positive right to use an invention, as its use or application is also subject to legal restraints (e.g., human cloning) or regulative licensing necessities e.g., medicine and medical devices. Likewise, there’s no legal ethical scruple for a patent owner to figure or license others to use a proprietary invention, and, as a general rule, a patent which can even be used all to permit the merchandise to enter the market. Exceptions are known for the required licensing of proprietary inventions once necessary to safeguard public health and welfare like weapons and medicines. A sequence patenting means that solely the patent-holder has the proper to undertake analysis and development involving that sequence. These patents usually last for concerning twenty years. To the most effective of our data, the homeowners of the overwhelming majority of issued sequence patents haven’t sharply implemented their rights against clinical molecular medical speciality laboratories. 

Withal, a majority of biology laboratories across the North American nation report that they need to have one or a lot of the on top of sickness sequence patents declared against them in some cases, these patent homeowners are willing to grant a license to laboratories acting as a home-brew check. Per check royalties of that, we’ve become aware embody USD a pair of for the ΔF508 mutation of CFTR (University of Michigan), USD five for Gaucher’s sickness (Scripps Institute), USD 12.50 for Canavan sickness (Miami Children’s Hospital), and reportedly over USD twenty for HFE (Bio-Rad). In some cases, AN up-front fee (not tied to volume) has been demanded further. Whereas these royalties arguably scale back access and make issues for laboratories, they have to be examined within the context of the North American nation business, profit-centred health care system, the rising category of cistron patents that claims the purposeful use of a cistron. These patents square measure supported the discovery of the role genes play in sickness or alternative bodily and cellular functions or pathways, and claim ways and compositions of matter (typically known as ‘small molecule’ drugs) won’t go up- or down-regulate the cistron.

These medications don’t seem to be probably cistron products, however, rather alternative sorts of chemicals found to result in cistron functioning, and also the medication squares measure probably patentable themselves as distinctive chemical entities helpful as medical care. For instance, a patent that was recently invalid claimed ways and compositions of matter for the selective inhibition of the Cox cistron, that prevents inflammation and pain. The patent was invalid as a result of the artificer, the University of Rochester, did not disclose a chemical entity that may perform such selective inhibition.

The Pros And Cons Of Gene Patenting


  1. Gives corporations that patent genes time to seem at the genes while not competition. These corporations don’t need to worry that different corporations square measure competitively with them to form discoveries. This can be particularly necessary for smaller corporations which will not have the resources to vie with larger corporations.
  2. Encourages analysis and development in camera business. Patents support innovation and invention by giving corporations rights to cistron sequences. The lure of a possible patent drives and pushes researchers to suppose additional creatively and work tougher to get a patent for his or her work.
  3. Provides opportunities for investment in analysis and development. Companies, besides as people, will invest in a very proprietary cistron. This provides resources for the event of helpful innovations. It will take many countless green backs to introduce a replacement drug to the market. Most corporations don’t have this cash and believe investors for money help. 


  1. Hinders analysis. Since patents offer the house owners material possession rights on the proprietary ordering sequence for seventeen to twenty years, many folks concern that cistron patents hinder analysis. as an example, patents on the BRCA1 and BRCA2 cistron variants, that are connected to hereditary breast and sex gland cancers, belong to Myriad biological science. The patents offer Myriad biological science exclusive rights to conduct diagnostic tests on these genes. This implies that different corporations aren’t allowed to figure with these genes, missing out on the potential to create necessary discoveries on these proprietary genes.
  2. It ends up in monopolisation of genes. corporations that hold cistron patents have exclusive rights to them and should conceive to not permit different corporations to appear at these genes. This could result in a monopoly and foster a close-lipped culture among analysis corporations.
  3. Slows down medical results. If a corporation holds a cistron patent, they own sole rights to analysis and testing cistron. Thus, if a patient contains a check done thereon cistron, the samples should be sent to the corporate owning the cistron patent to be tested. this might cause delays in obtaining check results.

Gene Patenting In India

There’s an absence of choices within the higher judiciary on this subject material, this paper seeks to review patent grants associated with nucleic acids by the Indian Patent Office (IPO) and alternative pointers issued by them to determine the explanation used. Countries with robust cistron patenting laws for plants have an Associate in Nursing economical recombinant DNA technology in plants that enriches the present pool of recent varieties. it’s helpful for agriculture, similar to the food business of the state. It additionally attracts the FDI as foreign breeders are inspired to invest in Nations having cistron patenting laws. Biotechnology in the agricultural sector is developing. Lack of robust legal protection for recombinant DNA technology in plants hinders Agro-biotech inventions. However, it’s its drawbacks for developing countries like Bharat. India is largely associated with the Nursing agricultural economy and an overwhelming majority of its individual’s area unit farmers. 

Plant genetic resources are slowly developed over thousands of years with the domestication of plants. Peasants and native communities by their ancient practices have considerably contributed to the creation, conservation, exchange & utilization of genetic diversity. Since cistron patenting in plants is allowable in several nations particularly in developed nations as the biotech business is dominated by them, therefore, taking the advantage of this legal regime, Agro-biotech firms have obtained many patents on genetic inventions regarding plants. They generate large profits by misappropriating the genetic resources of developing or under-developed countries, which are rich in biodiversity.

This free flow of biological resources and associated information from South to North happen thanks to the idea of “free access” and “common heritage of grouping.” Therefore, whereas accessing the genetic resources consent of the country of origin isn’t obtained. Further, genetic material is taken while not compensating and acknowledging the contribution of indigenous communities of the supplier country. This provides rise to the issue of ‘biopiracy’ and ‘cultural piracy’. Moreover, granting patents like a monopoly on genes of plants might need the farmers to pay royalties to get protected seeds beside connected restrictions on saving, replanting, and selling saved seeds. In Monsanto Technology LLC v. Nuziveedu Seeds Ltd. Division Bench of the state supreme court of Delhi controlled that “genetically changed plants, cist optically changed seeds and gene sequences that provide genetic traits to plants don’t seem to be patentable subject material in the Asian country.

Gene Patenting In United States – The Supreme Court Decision In The Myriad Case

Thousands of patents are awarded that claim human cistron sequences and their uses, and a few are challenged in court. in a very recent high-profile case, Association for Molecular Pathology, et al. vs. Myriad biological science, Inc., et al., the U.S Supreme Court ruled that genes are a unit present substance and so not patentable through “composition of matter” claims. the results of this ruling can extend well on the far side ending Myriad’s monopoly over BRCA testing and should have an effect on similar monopolies of alternative business laboratories for tests involving alternative genes. It might conjointly modify material possession problems encompassing genome-wide clinical sequencing, which may generate results for genes coated by material possession. Non-invasive antepartum testing (NIPT) for common aneuploidies victimisation acellular craniate (cff) desoxyribonucleic acid in maternal blood is presently offered through business laboratories and is additionally the topic of current patent proceeding. The recent Supreme Court call within the Myriad case has already been invoked by a lower district court in NIPT proceeding and resulted in dissolution of primary claims in a very patent on presently marketed cff DNA-based testing for body aneuploidies.

History, Purpose And Application of US Patent Law

The constitution of the United States contains a clause that “Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries”, that was the inspiration for developing patent legislation. Section one hundred and one of the Patent Act defines patentable subject material and says: “Whoever invents or discovers any new and helpful method, the machine, manufacture, or composition of matter, or any new and helpful improvement therefrom, might get a patent so, subject to the conditions and needs of this title. “succeeding revisions of the law enclosed criteria that to be patentable an invention had to be novel, “non-obvious” and helpful, a time limitation of twenty years from the initial filing, And an improved definition of patentable inventions.

Of connection to its current call on genes, the Supreme Court has antecedent explicit that “anything underneath the sun that’s created by man” is patent-eligible, however, that “laws of nature, abstract concepts and physical phenomena” don’t seem to be as a result of “such discoveries area unit manifestations of nature, liberated to all men and reserved completely to none”. The USPTO is tasked with examining patent applications and subsidization patents, and reviews and awards thousands of patents every year.

Association for Molecular Pathology vs. Myriad Genetics

Myriad Genetics filed the primary BRCA1 sequence patents in 1994 and BRCA2 sequence patents in 1995. By 1999 it had been the sole company performing BRCA testing within the North American country and presently has a minimum of twenty-four patents covering numerous aspects of BRCA analysis. Many of those patents contain “method” claims associated with carcinoma screening and diagnosing, besides as “composition of matter” claims involving the BRCA1 and BRCA2 genes. As a result of Myriad didn’t license the technology to alternative laboratories within the North American country, and sued or vulnerable to sue others providing the take a look at, it became the sole supplier of BRCA testing. Myriad has additionally unbroken their info of detected mutations and sequence variants within the BRCA1 and BRCA2 genes proprietary since 2004. 

Though Myriad’s BRCA analysis may be a top-quality take a look at and is reimbursed by several health care payers, testing has remained dear. It’s attainable that in some cases the absence of alternative suppliers has reduced access for a few patients whose insurance plans didn’t have contracts with Myriad. Additionally, significantly, it’s prevented second-opinion or substantive testing by alternative labs inbound cases with troublesome to interpret mutations or sequence variants of unknown clinical significance. whereas several sequence patents are the topic of patent-infringement disputes, most cases involving genetic diagnostic patents are settled out of court till recently.

On May 12, 2009 the American Civil Liberties Union (ACLU) filed a lawsuit against Myriad Genetics on behalf of the AMP and alternative organizations, as well as the American faculty of Medical biology and genetic science, patient support teams, besides as individual patients, researchers, clinicians, and scientists, several whom hold outstanding positions within the field of medical biology. These parties challenged that isolated deoxyribonucleic acid isn’t patentable subject material following North American country law as a result of deoxyribonucleic acid and genes square measure present substances. They additionally challenged the patenting of cDNA, methodology claims associated with screening for cancer medical speciality, and methodology claims for carcinoma risk prediction by mutation analysis of BRCA1/2. 

The North American country District Court of the Southern District of the latest royalty dominated in favour of the challengers and nullified bound claims within the patents on BRCA1 and BRCA2. Myriad then appealed to the North American country Court of Appeals for the Federal Circuit (Ct. App.), which partially reversed the District Court’s call by upholding the composition of matter and screening claims, however not the diagnostic methodology claims. The ACLU after petitioned the North American country Supreme court to review the ruling, however, they sent the case back to the Ct. App. for reconsideration insight of a Supreme Court ruling on March twenty, 2012 in another case, Prometheus vs mayo.

In this case, Mayo Collaborative Services and Prometheus Laboratories, Inc. were under consideration over Prometheus’s patent claims on an assay that measures thiopurine metabolites to manage the doses of thiopurine medication administered to patients with auto-immune diseases. Once mayonnaise began to supply its own take a look at, Prometheus sued them in 2004 for infringement. In March 2008, a California District Court ruled that the Prometheus patents were invalid supported section one zero one of the patent act. Prometheus appealed and also the Ct. App. reversed the choice in Gregorian calendar month 2009. mayonnaise then appealed to the Supreme Court, United Nations agency sent the case back to the Ct. App., that upheld its previous call. mayonnaise re-appealed to the Supreme Court, United Nations agency on March twenty, 2012, declared the method claims in Prometheus’s patents were invalid on the idea that they effectively claimed underlying laws of nature and didn’t contain ample innovation. The court ruled that to patent a method that was an associate degree application of a concept, enough creative steps had to be added so it had been “significantly over a patent on the concept itself”. The court, rather than merely adding routine steps to a concept didn’t build it into a patentable method.

It was on this basis that the North American country Supreme court then sent the Myriad case back to the Ct. App., but the Ct. App. stood by its previous call. The ACLU all over again petitioned the North American country Supreme court and that they united to review solely the question of whether or not genes isolated from the human ordering square measure are patentable. On June 13, 2013, the Court that genes square measure merchandise of nature and can’t be patented and expressed that the act of analytic deoxyribonucleic acid and also the modifications additional to deoxyribonucleic acid merely for the aim of analytic it doesn’t add ample innovation or modification to present genes to qualify for patent protection. However, the Supreme Court set that cDNA, a molecule made within the laboratory by reverse transcription from present messenger RNA, contains ample modification to form it eligible for patenting, as a result of cDNA doesn’t commonly reside within the body. As a result of the Supreme Court elected to not address the inferior court rulings on screening and diagnostic methodology claims, genetic diagnostic patents containing solely strategies claims don’t seem to be directly stricken by this ruling. Withal, the previous call of the Supreme Court in Prometheus vs mayonnaise has already influenced court choices regarding methodology claims in controversial patents.

The negative effects of this ruling on Myriad’s business square measure are expected to be restricted, as a result of a number of the patents below question can expire in regarding 3 years. Moreover, Myriad continues to possess alternative doubtless enforceable methods-based material possession and keeps knowledge for clinical interpretation of genetic variants and mutations proprietary. Even so, when the ruling, challengers claimed success, and several other laboratories have either already started or communicated their intention to begin providing BRCA testing. Myriad then filed suit against such firms, claiming infringement and requesting a preliminary injunction to prevent alternative firms from providing BRCA testing. This injunction was recently denied in one case and another was settled out of court. Myriad has additionally been counter-sued for fair violations.

Many scientists, clinicians, and industrial entities in biotechnology and medicine, a square measure currently inquisitive however the ruling can impact alternative domains of biotechnology and also the pharmaceutical business, and whether or not it’ll serve the interest of patients and society generally. Biotechnology business representatives have voiced considerations regarding reduced incentives to initiate in genetic medicine, however previous studies recommend that patents don’t seem to be the most drivers of innovation. It’s additionally been argued that a lot of firms can examine alternative ways to guard their inventions, for instance through trade secrets. a vital distinction between patents and trade secrets is that the latter doesn’t need a public speech act of the invention, that is integral to the method of application and that they even have no deadline. Thus, if others build a similar invention severally, they will still acquire material possession rights to associate degree invention protected as a secret whereas public speech act in patents makes it attainable for others to create on its data or realize ways to avoid the patent, resulting in new inventions. For instance, Myriad’s proprietary sequence variant info is the command as a secret, which can impede competitors and clinicians from having the ability to access data on genotype-phenotype correlations necessary to produce the comparable quality of clinical interpretation. Hence, this proprietary info continues to give a barrier for competitors coming into the market notwithstanding patents square measure nullified or expired.


Laws of developed countries are liberal in granting a patent on genes of plants as the biotechnology industry is dominated by them. However, on one hand, to satisfy its food security, India is in having to be compelled to promote the plant biotechnology, on the other hand it’s an associated agricultural economy, therefore, it’s below an obligation to safeguard the interest of its farmers. Further, it is rich in diverseness, therefore, it’s its issues relating to the difficulty of bio-piracy. Therefore, there is a need to be compelled to build the balance. For that purpose, some measures are also recommended. 

Firstly, gene patenting practices in India are still ruled by the Indian Biotechnology pointers, 2013 and Manual of office applications and Procedure issued by the Indian office. These guidelines don’t seem to rule and are subject to interpretations by a court of law, statutory amendments, and valuable inputs from stakeholders. Just in case of conflict between these pointers and provisions of the Patent Act, 1970 and Patent Rules, 2003, provisions of the aforementioned Act and Rules can prevail. Therefore, to manage the difficulty of sequence patenting of plants, clear cut pointers should be ordered down within the Patent Act, 1970 itself. 

Secondly, these pointers ought to make sure the farmer’s right “to save, re-use, exchange and sell the farm-saved seeds just in case of patenting of plant genetic materials.” Thirdly, the Issue of bio-piracy has been addressed in Patent Act 1970, PPVFR Act, 2001, and Biological Diversity Act, 2002. 2 parallel profit-sharing schemes have been developed within the Biological Diversity Act, 2002 and PPVFRA, 2001. There is an overlapping between the two-benefit sharing regimes. However, very little effort has been created to coordinate the 2 systems coherently. Therefore, there would be a single comprehensive regime that ought to be applied as an integral part of the overall material possession rights strategy. Fourthly, moreover, profit claimers haven’t any voice in the determination of profit sharing. Therefore, they ought to tend to have effective negotiation power in the determination of profit sharing.

Frequently Asked Questions (FAQs)

  1. What are Gene Patents and why are people worried about them?
  2. Is Gene Patenting bad?
  3. Can Human Genes be patented in India?
  4. How many Genes have been patented till now?
  5. What Biological Materials can be Patented?



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