We are probably all a little uneasy that the Ebola virus has reached U.S. soil. At least to me, having Ebola in my very own city (Dallas/Ft. Worth) is especially alarming. So I searched the Internet to learn more about this disease and guess what I found?
The U.S. Center for Disease Control (CDC) actually has a patent on the Ebola virus.
What does this mean?
For starters, it does not mean that the United States created the Ebola virus or that it intends to profit from a potential pandemic. In fact, patenting naturally occurring life forms has been a standard practice in the United States for about 30 years.
The idea was that it is not so easy to isolate something like a virus or to create a vaccine. So, even though all diseases can be found in nature, Uncle Sam would reward whoever put in the effort to isolate them with a patent. In other words, if you help solve a big problem you should expect to be allowed to profit from your efforts.
Sounds simple, right? Except this very idea is at the core of a long-standing bioethical debate. On the one hand, if you give someone a patent over something that occurs naturally you give them power to control the costs of any future treatments, which might limit public access to it.
On the other hand, how many people do you think would dedicate the time and resources necessary to perform this kind of research if they didn't think they could get a return on their investment?
Applying this dilemma to Ebola, on the one hand you have the potential for an entity to charge a fortune to cure you, and on the other hand the possibility that nobody ever bothered to find a cure.
Which approach would you prefer? For better or for worse, the U.S. Supreme Court decided for us in a June 2013 landmark case about who owns the genes for breast cancer. In this case a company called Myriad Genetics had secured several patents after they disclosed how to isolate two genes for breast cancer. The problem was that to screen whether someone has a breast cancer gene requires isolating it--meaning you could not even test whether or not you had the breast cancer gene unless you first had Myriad's permission!
To be brief, people sued, Myriad lost, and the Supreme Court overruled in one day what had been a standard practice in patent law for about 30 years. Now, if you want to patent something in nature it is no longer enough to just isolate it. You have to make it different somehow.
So back to Ebola. Uncle Sam filed the Ebola patent in 2009, nearly four years before the Supreme Court's Myriad decision. Considering the climate at that time, it is very likely that the CDC's intention was to secure the patent to prevent companies like Myriad from holding it over our heads in a similar fashion to the breast cancer genes. Even if this were not so, the Myriad case will help ensure that the Ebola patent does not inhibit the world's researchers from finding better ways to diagnose and treat victims of the virus.
If we are lucky, we may even find a way to prevent it.
(Note: This brief summary only covers a portion of the many nuances involved in determining whether a specific idea is patentable. If you have any question regarding the patentability of your idea, please feel free to contact the Eldredge Law Firm.)