Gene Concepts, Gene Talk, and Gene Patents

Abstract

Since the existence of a discrete unit of heredity was first proposed by Gregor Mendel, scientific concepts of the “gene” have undergone rapid evolution. Beyond obvious epistemic and operational importance to the scientific community, changing gene concepts have exerted strong effects on institutions such as medicine, the biotechnology industry, politics, and the law. A particularly rich example of this is the interplay between gene concepts and patent law. Over the last century, biology has elaborated gene concepts that variously emphasized genes as discretely material, genes as information, and genes as extremely complex. By contrast, patent law has steadily adhered to a simpler, more stable concept of the gene since the advent of gene patents in the late 1970s. In fact, while the biology community has increasingly engaged in vigorous internal debate regarding the gene’s complexity and uncertainty, it has tended simultaneously to emphasize the simplicity and certainty of the gene to constituencies outside the biology community, most notably the United States Patent and Trademark Office (USPTO) and the Federal courts. Rather than allow gene concepts to become contested by constituencies outside biology, the biology community appears to have used its authority to maintain a portrayal of the gene that facilitates the appropriation of rents from genes through the patent system. This use of “gene talk” has undergirded the growth of biotechnology into a powerful industry that has economically rewarded investors, academic institutions, and biologists. Not only may gene talk have facilitated the patenting of genes, but the prominence of gene patents describing a relatively simpler gene concept may have fed back into biological science to promote a simpler, and more patentable, concept of the gene even among members of the biology community.