Biotechnology patents are indeed complex and sometimes obtuse documents.
But the question of whether or not the PNG patent claims human genetic
material is actually quite a simple one, that has been unnecessarily made
more complex by Dr. Greely's misintepretation of the patent claims.
When Dr. Greely says the following...
> "...no patent right was claimed in the human genetic information
> whatsoever;..."
... he is unfortunately wrong. The words that follow succinctly
demonstrate this point:
> "The patent is, thus, on the infected cell-line, preparations of pure
> virus made from the cell line, and various bioassays (tests) for detecting
> infection with this virus using the cell line.
All cells in the human body, with the exception of red blood cells and
reproductive cells (eggs and sperm), contain a full complement of human
DNA. In this case, the cells in question are "T cells," also known as
thymus lymphosytes, which are produced in the thymus and are an important
part of the body's immune system. When Dr. Greely correctly notes that
the patent includes the virus-infected T cell line, he is implicity
stating that the patent claims the DNA of the Hagahai man (even though he
may not realize it). This point bears repeating: The patent, in claiming
the cell line, necessarily and unquestionably claims the cell's contents -
i.e. the viral strain, and, of course, the human DNA.
For example, when I as recently interviewing a patent attorney for
Calgene, a California-based biotechnology company, the lawyer was
absolutely unequivocable on this point: "Any organism that contains
[Calgene] patented material is property of Calgene." In the realm of
plants (which are patented under the same utility patent laws as the PNG
patent), the question is not if organisms whose constituent parts are
patented by companies are owned by the company; but rather, whether or not
the company owns the *progeny* of organisms that contain their patented
genes and cells. Consider the much-publicized "Flavr-Saver" tomato.
Such claims are, in fact, normal in biotechnology patents. Phil Young
might look at the case of an Oregon local, John Moore. Moore's cells were
patented in the same manner (also, coincidentally, for their use in
leukemia-related research and treatment). John Moore has been active
internationally in protesting the patent on his cells. The PNG patent,
however, is the first time the US has patented a foreign citizen - or an
indigenous person.
> In my view, either the statement by Greely or that by Hammond represents
> a misunderstanding of the facts in the case or a deliberate attempt to
> misconstrue or obfuscate the facts for presumably propagandistic
> purposes.
I wholeheartedly agree that Greely's statement belie a fundamental
misunderstanding of the facts; but I would not go so far as to say that
they are a deliberate attempt to obfuscate them for propagandistic
purposes. It deserves mention that Dr. Greely is not a patent attorney,
and it is entirely possible that his interpretation was based on a genuine
ignorance of patents and the implications of patent claims, rather than a
deliberate attempt to confuse or trick anyone.
I hope that we can now put aside the question of the veracity of RAFI's
interpretation of the patent claims and move on to the more important
issues regarding biopiracy and indigenous people.
Edward Hammond
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Comments from NativeNet listowner, Gary Trujillo (gst@gnosys.svle.ma.us):
I hope that Edward plans also to answer the specific statements that Dr.
Greely made in his article of last Friday regarding the non-involvement of
the HGDP in the case that the RAFI press release cites. Dr. Greely
claimed that the HGDP "had nothing to do with the collection, analysis, or
patenting of the cell line from Papua New Guinea or with the patenting of
any other cell lines, indigenous or otherwise," for example. The RAFI
statement attempted to suggest that the HGDP *did* in fact have some
involvement, and Edward himself was quoted as saying "The thin veneer of
the HGDP as an academic, non-commercial exercise has been shattered by the
US government patenting an indigenous person from Papua New Guinea," which
Dr. Greely says confuses the HGPD and the U.S. government and is based on
misinformation. If Edward has actual evidence that the HGDP is somehow
implicated in being involved in the PNG case, I hope he will present it.
Dr. Greely said "As a member of the North American Committee of the Human
Genome Diversity Program, I share RAFI's concern about the patenting of a
cell-line derived from a member of the Hagahai population, or from anyone
else, indigenous or non-indigenous, who may not have given fully informed
consent to such use of his tissues or who may otherwise have been treated
unfairly," which sounds like a pretty clear statement that he agrees with
RAFI in their condemnation of the patenting of this material.
I am in no way taking sides in this issue - I just want to see it fully
and fairly explored. If Edward Hammond or RAFI has actual evidence in
support of their claim that the HGDP is other than an academic non-
commercial enterprise, I hope they will present it for all of us to
examine, so that we can help expose the organization's deceit. If such
evidence cannot be presented, I have to agree with Dr. Greely that an
apology should be offered for a false or at least a misleading charge.
Dr Greely also says:
RAFI, which purports to be know something about patents, has grossly
misstated the nature of this patent. The patent was not, of course, on
"a person." Nor was it on the information contained in the person's
genetic material. Instead, the patent is on a cell-line that is
infected with a particular variant of a virus called HTLV-1 and on the
possible uses of that cell-line in developing diagnostic tests. No
patent right was claimed in the human genetic information whatsoever;
that material is present in the cell-line because it is present in human
cells and the virus needs a human cellular host.
I have to agree that talking about "patenting persons" tends to obscure
the real issue. Unless and until the Star Trek / Jurassic Park kind of
technology is developed that permits people to be grown from their genetic
material, I feel it serves only rhetorical purposes to pose this issue in
such a way. HOWEVER, there may still be gross ethical violations inherent
in the patenting of such genetic material. I think this question hinges
on a clear understanding of just what it is that is being patented, what
rights the patent deprives the person from whom it has been taken from
exercising, and the uses to which the genetic material is being put.
Perhaps some of you out there who have the biological / medical background
to help us understand some of the technical issues can provide some commen-
tary that clarifies the situation. But I think that it is unfair to try
to get Dr. Greely to defend the business of patenting genetic material in
the Papua New Guinea case when he explicitly disclaims that whole business
and, speaking for the Human Genetics Diversity Project, tells us that they
have no involvement in that matter - unless evidence can be brought forth
that more strongly suggests a real involvement than what has been heretofore
demonstrated.