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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.
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
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.
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