As science rushes forward, exploring the nooks and crannies of the human body, society is struggling to keep up. Science pushes boundaries often for the sake of simple exploration (with little thought to appropriateness and reasoning). Society then comes running behind trying to keep the mess created as clean as possible. A great example of putting the horse before the cart.
This race is nicely captured in the issue of Medical Facts patents – patents granted to people or corporations that concern a natural biological fact. For a good example, check out the following article from PUBPAT – a public interest group concerned with the patenting process. The article outlines the group’s position on a recently granted patent that is being appealed in the court system. The article puts it best:
The issue stems from a case that involves a patent granted by the U.S. Patent Office on diagnosing B12 or folic acid deficiency, which can cause serious human illnesses such as cancer and vascular disease, simply by knowing if a patient has an elevated homocysteine level. It is a matter of natural biology that whether someone has a B12 or folic acid insufficiency is related to whether they have a high level of homocysteine, because homocysteine is an amino acid metabolized by B12 and folic acid. Lower courts ruled that doctors who use or discuss the relationship between B12 or folic acid and homocysteine committed illegal patent infringement….
Pardon? What? Discussing a naturally occurring relationship is considered patent infringement?
Using this natural fact in diagnosis and treatment is illegal? This is ludicrous. How can anyone purport that this kind of system is in any way beneficial to the patient, or that it does not block innovation and proper medical treatment in the medical industry? Damn straight the Supreme Court should listen to the appeal.
In this example, the patent laws are out of date, and have been abused because they are incapable of taking into account these new technological advancements. In this case, the technological advancement is nothing advanced at all, yet still the patent system is incapable of dealing with it appropriately. So of course it must go to the courts to decide how to deal with it. Meanwhile science has already left this issue behind in the dust, searching out new thorny issues to root up.
I remember reading the final report of the Royal Commission on Reproductive Technology that was finalized in 1993 and wondering how the laws of Canada would be affected by the findings of this report. It was a thorough and measured analysis of some of the challenges that society would be facing in the forseeable future as technology continued to open new doors. I suppose, looking back now over a decade later, that the answer is simple: nothing. We still have no way of addressing technological advances without resorting to the courts. It is a reactive attitude to powers that are forming our very society and I don’t think a reactive attitude is appropriate. We need to stop relying on archaic legal structures to deal with cutting edge discoveries.
We need to start taking a look at the big picture and making some guidelines and restrictions based on those, rather than picking at the minutia of each issue as it pops up.