Battle Pending

By J. MADELEINE NASH

Pity the beleaguered U.S. Patent and Trademark Office. Even before last week's announcement by Celera, applications for patents on human genes were pouring in by the thousands. Biotech firms are seeking rights to genes that might control everything from the neurotransmitters in your brain to susceptibility to chronic diseases. The frenzy is rekindling fears that a few corporations will end up controlling a priceless resource.

Already, skirmishes have broken out between university-based researchers, many allied with the Human Genome Project, and small, aggressive firms like Celera, Incyte and Human Genome Sciences. These companies are churning out patent claims almost as fast as they sequence our DNA. In 1999 Celera filed provisionally on no fewer than 6,500 genes and their fragments.

This year Human Genome Sciences won sweeping rights to future products based on a gene known as CCR5. The protein it encodes has emerged as a promising target for anti-AIDS drugs. That rankles Christopher Broder, who, along with a platoon of other scientists, nailed down the link between CCR5 and AIDS. Why, Broder asks, should Human Genome Sciences profit from their hard work?

Even more controversial are attempts to patent not whole genes like CCR5 but mere snippets, such as ESTs (expression sequence tags) and SNPs (single nucleotide polymorphisms). Incyte, for instance, aims to patent more than a million ESTs. Such patents, says American University law professor James Boyle, are "fishing expeditions"--reeling in fish they don't know what to do with.

Gene patents, to be sure, can be useful. Without them, the private sector wouldn't ante up the billions of dollars needed to drive biotechnology. But critics feel that far too many patents are being issued on DNA sequences whose commercial use is unclear. Though the Patent and Technology Office is trying to reduce the number of approvals it issues, no one doubts the courts will eventually have to step in. But now the rush is on to patent every gene in sight.

--By J. Madeleine Nash. With reporting by Unmesh Kher/New York

With reporting by Unmesh Kher/New York