How Gene Patents are Challenging Intellectual Property Law: The History of the CCR5 Gene Patent

During the 1980s and 90s, various branches of the federal government did their best to encourage patenting in general, and genes in particular (Rai 1999, pp. 77–109; Dutfield 2009). The United States Patent and Trademark Office (USPTO) and the Court of Appeals of the Federal Circuit (CAFC) have ceded much ground (some might argue too much ground) to the interests of the biotech industry, including Big Pharma and DNA sequencing companies. In a concerted effort to bolster this economic sector a number of curious and indeed alarming decisions have been made. This essay details the story of the interesting decision of the USPTO to grant a patent on a gene, despite the fact the patent holder listed the incorrect sequence in the specification and did not know the most relevant attribute of the gene product, namely that it was a chemokine receptor-CCR5, which is the co-receptor recognized by HIV-1, the virus responsible for AIDS. We live in an age that some science-technology-and-society (STS) scholars have labeled biocapitalism (for an excellent summary of biocapitalism, see Helmreich 2008). Biological entities and processes are commodities, which have their values set by the market.