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Spring 2000

Patent Pending
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The most critical present debate about gene patents focuses on the nitty-gritty: which specific patents and claims to allow. Patent law is meant to provide a pragmatic framework that, in the words of the Constitution, will "promote the progress of the useful arts and sciences." To reach this goal is no easy task. Fostering the development and dissemination of new technologies through the patent system is necessarily a balancing act. Too little protection stifles progress by removing the incentives needed to attract capital and human energy; too much stifles it by allowing the erection of patent barriers that discourage innovation by others.

The tension between these two can never be resolved and, in as dynamic an environment as today's, the right balance can only be approximated. The key question about patenting genes should be what criteria for allowing claims will most encourage the exploration for new drugs and medical treatments.

The most threatening consequences of inopportune policies in this arena are not visible problems like the denial of a patented genetic test to someone who can't afford it. Of far greater import are the invisible might-have-beens that are not; the medical breakthroughs delayed because no one could profit from their development; the advances held back because broad patent rights have discouraged competitors.

These tensions are evident today in the debate about expressed sequence tags (ESTs)-short sequences coding a segment of a gene. Provisional patent applications covering more than a million ESTs have been submitted and they typically try to reach through to the gene that contains them. Many scientists have loudly attacked such patents. James Watson, co-discoverer of the structure of DNA, put it bluntly when he asserted that such discovery could be "done by robotics and monkeys."

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