In the roughly 130 years since the first biological patent, the subject of those patents has changed considerably — with some problematic ethical consequences according to David Magnus, PhD, co-director of the Center for Biomedical Ethics.

In a lecture Friday, Magnus said that the original biological patents were for tangible things such as new bacterial strains. Today, researchers can patent biological ideas such as the ability to screen a gene for disease-causing mutations.

These patents are inherently unfair to developing countries. He said that patents are granted easily, then the legality of that patent is tested in the courts. But if a developing country lacks the funds to sue, it will have some avenues of research or therapies closed off.

"The system is set up to benefit those with the money to litigate," Magnus said.

He added that as researchers learn more about genetics, the patents become more likely to overlap. Take the case of a gene called ApoE. One version of this gene puts a person at risk of Alzheimer’s disease while another version increases the likelihood of heart disease — and these two interpretations come under separate patents.

A doctor who orders a screen for the heart disease mutation must also pay the Alzheimer’s disease patent holder because the one test could reveal either mutation. This situation can make the tests prohibitively expensive leading to what Magnus calls "the clinician’s dilemma."

"Physicians can either commit malpractice [by not performing the expensive test] or infringe on patents," he said.

An additional ethical problem is how to compensate people whose tissue samples were used to identify the disease-causing mutation. In the past, those thousands of people received none of the benefit companies got from the gene patent. Magnus said some advocacy groups are now organizing so the blood or tissue donors will gain some benefit from the research.