Human genetics : minutes of evidence, Wednesday 8 February 1995 ... / Science and Technology Committee.

  • Great Britain. Parliament. House of Commons. Select Committee on Science and Technology
Date:
[1995], ©1995
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Licence: Open Government Licence

Credit: Human genetics : minutes of evidence, Wednesday 8 February 1995 ... / Science and Technology Committee. Source: Wellcome Collection.

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    8 February 1995] [Continued [Sir Trevor Skeet Cont] in this area. I believe that the general view that we take in the United Kingdom is that patent rights apply primarily to commercial exploitation, and we have a research exemption for experimentation with the subject matter of an invention, to improve it, for example. That is very much less clear in the United States. There is also the difference in the United States that they have almost no derogations from what you can have in the subject matter area. For example, the only thing that is said to be unpatentable in US patent law is a human being. Chairman 386. So that their law really does not exist in terms of the definition on which we operate here? (Mr Roberts) There are not so many differences as that, Mr Chairman. I would say that there is more a difference of emphasis than of fundamentals. Occasionally it is said that European law is fundamentally different from US law because in the US you can patent a discovery and in Europe you cannot. But the fact of the matter is that the practice is very similar in both countries as to the patenting of discoveries. Sir Trevor Skeet 387. Would you welcome a European directive on this particular subject along the lines that has now been agreed in a text between the Council and the European parliament? (Mr Roberts) This has been a matter of hot debate I think within the profession and within industry. My belief is that the compromise that the Conciliation Committee has produced, although it is rather unclear in some aspects, broadly confirms the existing practice of the European Patent Office and will be accepted by industry and will be a welcome resolution of the discussion that has taken place over sO many years. Dr Williams 388. You mentioned the difference between American and British law here on patenting. Are there any difficulties that are caused by that? (Mr Armitage) Some difficulties have been referred to which are not peculiar to this area of technology, that is to say, the first to invent versus the first to file, and other types of discrimination within the US patent system which discriminates to the disadvantage of foreigners. I do not think that we need to go into those particularly because as I say they are not peculiar to this area of technology. As Tim Roberts says, Mr Chairman, I do not believe that the apparent differences in the language in the law reflect as large a different in practice. There is one area of practice in the United States which is significantly different from ours, and that touches on this question of utility that Dr Bray was talking about earlier. The United States Patent Office does have quite a strong sense and element of law which requires utility to be demonstrated for an invention, particularly where you are claiming that you are producing a new substance and what is its utility. We do not have that so much here. There is no specific requirement for utility. Our requirement for industrial applicability is not at all the same thing, not nearly as strict. That I think is a difference which if we were to introduce a more stringent requirement for utility might go some way towards solving the problems but I have to say that in the United States you can still see very broad patents being granted. 389. Perhaps I can ask just one further question on this, Mr Chairman. We are in a rapid growing field, I think, and we are still in the early days of its development. Would it present any difficulties if there was an international consensus to say that DNA sequences are not patentable? (Mr Roberts) 1 believe that it could present considerable difficulties. It would depend on the detailed wording of it. All these—and I have to use words like arbitrary and artificial, which may appear to be derogatory, but that is not really intended, Mr Chairman—extra restrictions on the type of subject matter that can be patented over things that are new, not obvious and industrially applicable always cause difficulties in arguing about the borderline and they introduce areas and considerations which become more and more arbitrary. If you say that we cannot patent— 390. If I can just intervene here, I think that there is a consensus in this Committee and among scientists that DNA sequences are pure knowledge and it may have taken a lot of invention to get to that pure knowledge but there is a kind of consensus emerging that those should not be patentable. Now that is simple and clear. You do not need pages of memorandum to explain it, and if we just have that aS a one sentence consensus internationally what difficulties would it cause? (Mr Roberts) You are talking about natural DNA sequences rather than DNA sequences which are created in the laboratory? 391. I am talking about the genetic material, it is the natural DNA sequence. (Mr Roberts) No, I am sorry, it is quite often not the case that all that you have done in the laboratory is to clone it and multiply it. You may well put different bits together and produce novel vectors where you get one bit of DNA from one place and another bit of DNA from another place and you produce something which has completely new properties. Now I would certainly hope that you natural DNA sequences are unpatentable. There is also the question of whether they are really patentable at the moment. A claim to a natural DNA sequence is in my view either a discovery or anticipated by what already exists in nature so there normally has to be some distinction between the thing existing in nature and what you have claimed. Dr Lynne Jones 392. What sort of completely new properties can the DNA have in a test tube and not in vivo? (Mr Roberts) The natural DNA? 393. Yes, you are saying you are taking bits of DNA but in vivo the different bits of DNA work together although there may be different nucleotides bases separating them?