Patenting genetic material: Is it permissible in South African law?

• Jurisdiction: South Africa
• Pages: 265-274
• Citation: (1997) 9 SA Merc LJ 265
• Published date: 25 May 2019
• Date: 25 May 2019
• Author: ML Lupton

Patenting Genetic Material:

Is It Permissible in South African Law?*

ML LUPTON**

University of Natal, Pietermaritzburg

1 Introduction

It

is now more than forty years since Crick and Watson discovered the

deoxyribonucleic acid ('DNA') double helix: A spate of development

and research has taken place in the intervening years; latterly, the

scientific community has concentrated its efforts on unravelling the

human genome, the components of which have now been located on the

chromosomes and chemically identified in the form of nucleotide

sequences.

2

The chemical sequences of several thousand genes have already been

identified thanks to the human genome research programme and there

have been dozens of applications for patents in the United Kingdom, the

United States of America and Europe.

3

These applications and the future

discoveries in the pipeline have placed us at the crossroads in deciding

where to draw the line regarding the patentability of genes and the use of

the patented products.

4

The gene performs two vital functions in the body: (i) the transmission

of hereditary material to descendants, and (ii) the induction through the

transmission mechanism of a specific synthesis expressing a precise

function.

5

Scientists and the biotechnology industry have not been slow to

identify the vast commercial potential of genes and their nucleotide

sequences. They have already harnessed their discoveries in the

preparation of human products such as insulin, growth hormone,

antihaemophilic functions and for developing diagnostic kits for genetic

diseases and prenatal diagnosis.

6

The ultimate prize of successful gene

therapy' beckons alluringly on the horizon.

* I wish to acknowledge the financial assistance provided by the Centre for Science

Development which made this research possible.

** BA (Hons) LLB (UOFS) PhD (Natal). Professor of Law, School of Law, University of

Natal, Pietermaritzburg.

1

See Daniel J Kevles & Leroy E Hood (eds)

The Code of Codes: Scientific and Social Issues in

the Human Genome Project

(1992) at 54-55.

Idem at 112.

3

See A Pompidou 'Research on the Human Genome and Patentability — The Ethical

Consequences (1995) 21(2)

J of Medical Ethics

69-71.

4

See P Singer 'The Ethics of Patenting Life-Forms' 1991

Intellectual Property Forum

31-37.

5

See GJ Annas & S Elias (eds)

Gene Mapping

(1992) at 234 and 235.

6

See House of Commons

Third Report of the Science and Technology Committee on Human

Genetics: The Science and Its Consequences Vol 1

(July 1995) at lvii.

7

Ibid.

265

(1997) 9 SA Merc LJ 265

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