In the fall of 2009, I sat in an apartment in Center City Philadelphia with a dozen or so ACLU donors and staff members, and a handful of area Intellectual Property attorneys as ACLU attorney Chris Hansen outlined the organization’s strategy in a new lawsuit challenging the patenting of human genetic material. Earlier that same year, I was with a group of ACLU staff gathered in New York as we learned about a groundbreaking new effort by the organization. For decades, medical treatment and research had been limited by laws granting patent rights to the companies and corporations who isolated and identified human genetic sequences. Experts had long opposed such patent protections, but the ACLU thought they had an answer. We had a coalition of researchers, geneticists, cancer survivors, and health advocates, and we had a strategy to challenge the patents on two genes linked with breast cancer.
The ACLU’s argument, first dreamed up by Hansen and his team, was radical. The IP lawyers gathered in that Philadelphia apartment treated Many had argued that naturally occurring products like genes should not be patented. To grant a patent to the scientist responsible for its identification is like granting a patent on coal to the first man to dig a chunk from a mountain. Patents are meant to protect the invention of a product or process, not to grant proprietary ownership of a natural resource. Many had argued that the first gene patent was an error, made by a patent office who didn’t understand the new science they faced. What no one had ever argued was that the Constitution protects an individual’s right to own the genes in his or her body–that ownership of one’s body was a civil liberty.
Even for the lawyers in the room, it was hard to understand the argument. It was crazy. More than that, it was destructive. In the decades since that first erroneous gene patent, an entire industry had grown up around isolating and patenting genes–corporations had engaged in a race to identify, a race to patent, so that IP law would grant them the exclusive right to experiment, test, and license the genes they found.