Keynote by Alice Martin
“Humans are not Merely More Complex Lab Rats:
Experiences with Hutterites, Clients, and Lawyers”
Giving an after dinner speech reminds me of a true story related by
a Chairman in one of the departments I belong to. He was invited to be
the after dinner speaker at a local medical society meeting. He worked
very hard, and he got his slides ready, went over to this medical society
dinner, and they had the cocktails and the dinner, and he said, "Now?
Now do I talk?" And they said, "No, not yet." Then they had
some more cocktails, and he said, "Now? Now?" and they said, "Not
yet." So they went into the sauna of the hotel, and they all had
saunas and steam baths, and everything, and he kept saying, "Now? Now?"
and they said, "No, no, not yet." They got up to the after-dinner
drinks, after they were back in sporty clothes, and they finally said,
"Okay, you can give your talk now." By this time, he said it was
almost midnight, and everybody fell asleep. So I'm hoping since we
started earlier, that you will all be awake and able to listen to me.
I'm also reminded of a speaker who was at a scientific meeting, who
ended up his talk with sort of a smug query of, "Now, I wonder what I should
call my new discovery?" And a voice from the back of the room said,
"Why don't you call it what I called it ten years ago, when I discovered
The reason that I was reminded tonight of that last story is that, if
Arthur Steinberg, who's now Professor Emeritus at Case Western Reserve
University, Cleveland, Ohio, were here today at the symposia, or here tonight,
I think what he would say is, "I advocated a lot of these guidelines for
doing medical genetic studies on human populations in the 1950s."
And indeed, when I read a lot of the manuscripts that have been given us,
and publications to go along with this symposium -- or workshop, as I guess
it is treated -- I was struck by how many of the recommendations that many
of you and other authors have put forth, were promoted by Steinberg used
in the Hutterite studies beginning of the 1950’s. For example, "People
need to be treated not merely as subjects, but more as somewhat limited
partners." This was in one of the articles that was presented here
Really, the Steinberg philosophy, which we his students all learned
as soon as we got into his graduate program, was very similar to that statement,
and to other aspects that people have brought up today. And the first
and most important one, I think, was respect the culture. As you
will see a little while later, the Hutterites are somewhat of an old-fashioned
communal population. And simple things, like because the women wore
long dresses, I wouldn't show up on a field trip in a miniskirt as I am
in here tonight, for example. We were very careful not to dress to
insult them; we were careful to stay away from topics that would be offensive
to them, and very careful to respect their cultural background.
Second, get the cooperation of those in charge. Steinberg found
out in 1953, by doing a small pilot study on three colonies or communal
farms, that the ministers in each colony called all the shots. You
could not go into a colony, do anything with the people, even talk to the
people, without enlisting the minister's aid. And that's exactly
what he did, what I did later, and what people who are working in the population
now do: check with the minister first, explain the research goals, explain
what the study is about, explain how we plan to use the data, explain what
data you want, and try to preserve the confidentiality and assure them
And I'll go a little bit later into -- well, actually I'll do it now.
The method we had of preserving confidentiality was to assign each individual
study what we called a FINDIV number. It was a five-digit, unique
-- now I think it's a seven-digit -- number. The advantage of this
particular number was you could put it into a computer program written
by Arthur Mange, later by others, that automatically constructed pedigrees,
because of the way the numbers were selected, and also would print out
all the longitudinal data back to the founder population back almost to
the 1600s. The other thing that this confidentiality number did is,
you could, as you collected the medical genetic data, integrate it into
this computer database. Now, some of you listening here will say,
"Well, that's not such a big deal." But remember, this was in the
1950s, that this started. I mean, today, it's somewhat easy, but
in those days, Steinberg and his group were real pioneers. The inbreeding
program that Arthur Mange ran, after he coded the entire one population,
as I recall, he told me it took one or two weeks to run in the computer.
When I was doing my founder study to find out, going back through all the
pedigrees, who were the minimum ancestors of a the population, I had to
hire graduate students to sleep in sleeping bags next to the computer,
so that these long, involved pedigree searches could go on. I mean,
it's a far cry from what he have today. So, you know, it sounds trivial,
but in those days I think it was pretty progressive.
Some of the other things that Steinberg taught us, we have kept on for
these studies, which is really forty years later. The main study
started in '58. There were many of us involved Carole Ober at the
University of Chicago is still conducting a lot of studies on asthma, on
fertility, and in molecular biology. So for forty years, we have
kept up a very good relationship with this population.
Now what's the payback for the population, which is another concern
of this workshop? As I told some of you at our breakout session, it seems
kind of trivial, but what the Hutterites liked in the ‘50s, and they still
really like, is a printout of their family pedigree. Now, it doesn't
seem like a lot to us, but to them it's a big deal I checked with Carole
Ober last week at dinner, and she said it's still a big deal; that's what
they want. They want their family pedigrees. We also, in doing
the blood pressure, cholesterol and medical checkups, provided them with
any information that we found at the time, referred them to their local
physicians if necessary, and gave them such information as blood pressure.
Now, we also had links with the local physicians. I think this is
very important, not only for follow-up with conditions you identify, but
to alleviate any feeling from the local population that you're kind of
sneaking in there and studying their people without getting an appropriate
follow-up. And it's useful for us. One of the problems I had
logistically, when I was going to the Canadian colonies one time is, we
wanted to take a lot of our own syringes at that time, and needles, and
we were taking specula to examine the women. And so I showed up in
the Canadian airport with a giant box full of syringes and needles -- very
naive, right? -- and immediately was whisked into some room, where I spent
about five hours while the rest of my team waited out there for me to be
released. So we were smart the next time: we got the local physicians
to buy all the stuff for us, we sent them a check, that worked out fine.
So it's good to have local cooperation.
We also promised the Hutterites, and this has been a promise we've kept,
to only use the data for what it was we told them we were going to use
it in the first place. And of course, this has been updated over
the years. Now, that has caused some logistic and political problems
for me, and I understand, for Carole, and I know for Dr. Steinberg. People
will call you up and they'll say, "Gee, Alice, could you give me all the
population blood pressures and inbreeding coefficients, and anthropometric
data on your population, the Hutterites?" And we usually say “no,”
because the Hutterites didn't approve whatever it is these others want
to do with the data, plus we can't be sure the other investigators are
going to follow the same guidelines we did, in trying to publish this appropriately,
keeping our pact with the Hutterites. But as you can imagine, colleagues
sometimes get very nasty and accuse you of hoarding data. J.V. Neal,
University of Michigan tole me when I complained about a fellow colleague
that he knew who was badgering me mercilessly to get what I collected,
said, "Well, he was always like that, and he never wanted to collect his
own data." And also, the few times we have collaborated with people, it's
after we're sure that the goals are consistent with the philosophy and
the information we gave the Hutterites in the first place.
Now, in reading again some of these workshop papers, as someone mentioned
today there was nothing about the Iceland study in here, and I agree --
I was kind of surprised at that myself; I actually wanted to hear a little
bit about it. But the Iceland study and the Hutterite study appear
to have certain similarities in terms of populations that are identified
by scientists. We talked a lot today about who should identify these populations,
but in Iceland there is a local company who has made a pact with a larger
company, I think it's Hoffman LaRoche. This was debated through the
legislature, who noted, as I understand it, to go ahead with a genetic
study, collecting DNA. The reason the Icelandic population was of
interest is because of its homogeneity. One reason the Hutterites
were of interest to Dr. Steinberg is they are relatively homogenous.
The Hutterites are a genetically inbred isolate that live in relatively
uniform environments, and were ideal for medical anthropometric studies.
And why is that? Well, someone asked today, "Why do we need to present
the background of the population in a publication, or their genetic background?
Why can't we just present the data we've collected?" Well, the geneticists
in the room -- and many of the anthropologists who are sort of pseudo-geneticists,
right? -- know that the phenotype, or the thing you're studying... Let's
say you're studying heart disease or whatever. You know that that
phenotype is not based, usually, on expression of one gene. It's
usually the interaction of a gene or many genes against another genetic
background. Those who have done a lot of laboratory studies know
a gene in one genetic background does not necessarily have the same effect
as in another genetic background. So genetic background is important,
and the environment is important. You put the same gene in a couple
of different environments, you will likely get different effects.
And the reason, therefore, it's important to know where your population
is coming from, that's why I don't think we can just do random studies,
is if you publish a result, and you don't tell me what was the other genetic
background, what was the environment these people lived in, I can't really
evaluate if I can extrapolate that to a population I'm trying to provide
genetic counseling for, or to some mechanism of a gene. Now obviously,
if you get really to some basic mechanisms, you may be able to say this
gene does that, and you don't need background. But in general, you
need a lot of background there for understanding the genetics.
In terms of anonymity, Dr. Steinberg tried initially, futilely, to say
that he was going to hide the identity of the population he was studying.
Instead of them calling the Hutterites in his early work -- in fact, if
you pick up two of the reprints I left on the table, you'll see this --
he called them the "H-Leut. Leut means "people," and indeed the Hutterites
call themselves “Leut,” but H Leut was supposed to disguise the fact he
was studying the Hutterites. Now, you know, and I know, that that's
really a futile sort of protection. The reason Dr. Steinberg was
worried, and we still are worried, is that the Hutterites were a pacifist
group that, as you will see in a bit, came from Germanic-speaking people.
During the World War, they were pacifists, and they spoke German; you can
imagine how popular they were. A couple of their young men were imprisoned
in Leavenworth, and this would be around 1909, 1910, and two of them died
in prison. And there's a strong suspicion on the part of the Hutterites
that they were tortured to death. What happened as a result was that
the Hutterites picked up their colonies, which then were mostly in South
Dakota, and they moved all the colony people to Canada. This is the
reason for a big migration to Canada around that time, around 1910 to 1918.
They left a skeleton crew, really, of the older people back in their U.S.
colonies. Also, Hutterites are not a population that's universally
popular with their neighbors; they're rich farmers, so the farmers around
them are sometimes a little jealous.
So this is a group, I think, that fits the kind of thing you're all
worried about today, a population where maybe publishing some genetic studies,
might make them more unpopular than they were already. I can't see
that this has happened to the Hutterites; I have asked some of the other
people working with them, and we can't really see that there has been any
effect, other than the problems they already had, from the studies we've
published. But that may be that there really aren't, how would you
say, deleterious effects of genes that have come out of this study.
We showed inbreeding did not have a strong effect; we showed they're a
fairly intelligent population; we showed they had a low cancer risk.
Carole is now showing that the fertility problems in the Hutterites are
not more than the general population; it's just that she's pinpointing
these fertility problems, early missed abortions, to HLA compatibility.
Where the parents are HLA-compatible, they will have a greater chance of
having very early miscarriages. So I think one reason maybe there
hasn’t been a deleterious effect of research and publications is we really
haven't said anything bad about them. This may not work for all populations.
A little bit about the background of the Hutterites. They were
founded in 1528 (it's a religious Anabaptist sect), and they migrated in
a series of migrations, sort of picking up and losing people, until they
ended up around the 1700s in Russia. It was from Russia that they
migrated to the United States, between 1874 to 1877, to escape, again,
military conscription, and also to preserve control of the education of
their children on the colonies. When they came to the US, they formed
three separate colonies, which again, Dr. Steinberg tried to hide the identity
of by calling them S-Leut, L-Leut, and D-Leut, which actually are Schmiedenleut
or Blackmith's People, Lehrer-leut, or Teacher's People, and Darius-leut,
or Darius' People!
Now, you talk about the internal politics. We found out very quickly
that, for reasons that I think are still not known, the Darius-leut were
not as well thought of by the other two groups. They were thought
of as, you know, not quite good Hutterites. The Lehrer-leut are very,
very religiously strict; the Schnieden-leut are the group that have been
most cooperative, and Dr. Ober tells me, are continuing to be the most
cooperative. So even within a group that originated from the same
major group, you have political and personal differences. And we've
been very concerned about those. There's a lot more colonies now;
this is an old population. What happens is, when a colony gets to
a certain size, they elect a new minister, and they split - they buy new
land, and as soon as that land is self-sufficient, half the group, approximately,
moves to the new land with the new minister. So there's kind of a
Over time colonies split and formed various colonies, and go on from
there. The colonies vary a lot in construction. Some of the
older colonies in South Dakota are fairly primitive; some of the newer
ones are really quite fancy. And their farming methods are quite
modern. One of the amusing things that happened to me is we got to
one of the older colonies one time, and I asked one of the women, who seemed
to be in charge, where the bathrooms were. And she literally did
this: she went [gesture] "The pigs have running water! The pigs have
showers! The pigs have this!" and she's pounding this table
and berating the pigs, and she said, "And we have outhouses! The
outhouse is over there by the tree!" Now, we noticed a few years
later, we came back to that colony, they had inside plumbing. I think
she had her way.
In the past, Hutterite were totally served by a communal kitchen, and
ate in a communal dining room. All the women ate together, the men
ate together, and the minister had his own table. Now, I have to
tell you ladies in the audience that when I went out there with my teams,
which were mostly males, they just loved it when they put me at the women's
table! They thought that was very appropriate. Now, the implication
of this for Steinberg's original idea, was that you have a group with known
pedigrees eating food from a common kitchen. So if you're, for example,
studying obesity, you don't have the problem where, okay, this family's
fat, but Mother's cooking everything in bacon grease; this family's kind
of trim, but they're all eating veggies all the time. Here, they
really don't sit with their family units, so they weren't seeing each other
eat. Children weren't watching Mom and Dad, and they were eating
the same kind of food. It's was very heavy Germanic food in the past.
There have been some changes. Now, they're having more and more of
their snacks, as they call them, in their own homes. They all are
starting to put kitchens in their new homes. So they are changing;
it's a population that probably is losing a lot of the characteristics
that made them very good to study. But this is the past situation.
Hutterites really do have quite good food. Although they're also
diverging now, where some colonies are getting "health conscious."
So some of the cooks, there's a master cook who determines the menu for
the colony, some of the women are now going into more of the heart healthy
things, whereas other ones are still cooking with goose grease. So
it would be interesting if anyone -- we're not doing that now, but if anyone
would ever go back and try to see the effects of the changing diet on these
people, it would be rather interesting.
They're certainly very, very good craftsmen. Their places are
quite comfortable. Now, those interested in marriage patterns, I
wasn't going to say much about this, but we found out that what seemed
to happen is there are a lot of marriages, more than random, between two
sets of siblings. Now, they avoid close inbreeding, but we found
that a whole bunch of brothers would marry a whole bunch of sisters, and
I don't know if they're still doing it, but what they used to do is --
they'd have a barn painting, and so they would deliberately have all the
young men and young women come from one colony to the other, so you would
tend to have families meet each other. Since many are all approximately
around the same marriage age, you'd have a whole bunch of them suddenly
marry another bunch from the other sibship. So it was kind of an
odd marriage pattern. The women move with the husbands, so if the
colony splits, the husband goes along with his family, and the women go
along. So you've got a lot more migration of the women around colonies.
The other thing that Steinberg found that was really good about the
Hutterites for genetic investigation was that they had large families.
The average family size, I think when he started, was about ten, and a
lot of the estimates were that women were either pregnant or lactating
for every year from marriage to menopause. Now they tended to marry
a little late, which is what saved them a bit, and when I was still out
there, my last trip to the Hutterites was in 1982, by that time they were
already starting to use any excuse they could for a hysterectomy, which
is one way of shortening their reproductive period. Carole Ober now
tells me that they're moving toward use of actual birth control methods.
They need permission from the minister, and they aren't bragging about
it, but their family sizes are starting to go down a bit. They're
still averaging five or six children, however. So they're still big
families. So again, those familiar with laboratory studies, you know,
you like your mice, you have a whole big sibship, showing genetic segregation;
well, the Hutterites are pretty close to that in terms of human populations.
And there's almost no non-paternity that we could detect with all the blood
groups, it is very, very rare. So Hutterites are an extremely moral,
The colonies are located all through Canada and down here in the Dakotas,
and a few scattered around. Hutterites are actually very humorous
too: I have not lived with the Amish, maybe some of you have, but the Hutterites
are quite funny. One the physicians that I took out there that asked
why one Hutterite wasn't married yet, actually because the mother of the
guy, when he went in to see the doctor said, "Ask Mike why he is not married!"
So this doctor asked, and the guy said to him, "Why milk the cow when you
can get it through the fence?" Now we don't know exactly what that
meant, but... They have designated jobs on the colonies. We
always knew when the pig man walked in for blood drawing. The pig
man had an arresting odor.
So again, the reasons Steinberg picked this population out for studies
included a small number of founders, which is what I did my thesis on;
high fertility; communal lifestyle. The family size when they started was
quite high, and differed in the two groups studied (S-leut and L-leut).
They had an older age at marriage, they prohibited contraception, prohibited
premarital sex, (and really when you're out there, it would be really hard
to figure out how they could have premarital sex, because they're always
living in groups). The women, when they have their babies, give them
over to the young girls to take care of. The cook is in the kitchen
doing her thing. The young girls are out in the field, the boys are
out in, you know, further fields. So it's really group living, and
it would be very difficult, I think, to do anything very sneaky.
And they are monogamous.
The objectives of the Steinberg study, included: inbreeding effects;
mother-child blood groups, linkage. These objectives were interesting,
but not particularly startling. The objectives where the living in a common
environment were important were the serum cholesterol, blood pressure and
so forth. Now, I'll digress here for a moment. We asked, I
think today, what is the value of studying these specialized populations?
I told you some of the advantages; I'll tell you some of the criticisms
in the Steinberg study have always been, well, “this is a unique population.
No matter what you find in this population, we can't apply it to the general
population.” Now, I think, especially with some of Dr. Ober's work
lately, that's proving not to be true, but just so you know, that is a
possible disadvantage of studying a specialized group. Genetic drift
was really the biggest thing that came out of the study, showing the gene
variation among the different colonies. And again, we talked today
about how genetically divergent you can be within a same originating population.
So I have an originating population that splits into demes or whatever;
the gene variation in those splits can be very extreme. That's why
whoever said, "Well, how can you tell much from one old skeleton?
It may have just been an outlier." That's certainly very true, and
certainly, as you mentioned, something to keep in mind. Small sample
size gives you huge variation in genes. And one of the studies I did, so
you get the idea of what could be a benefit, was to study patterns of cancer.
Particularly being an inbred population, I was looking for the effects
of recessive genes.
How did we do this, and what kind of consents did we have? Well,
again, we explained the objectives to the Hutterites. Remember, we
already had all the pedigrees, so we knew who was related to whom.
We went in and we really investigated each population -- each colony, through
the preacher first, and asked him, because the preachers have big books
with all the family pedigrees in, and they don't have it written down,
but they know the health of the whole colony. So you sit down with
the preacher, you ask about the cancer, we already had the pedigrees, and
then, with his permission, we would interview the rest of the colony and
confirm whose ancestors, or who themselves now had cancer or a suspicious
sort of pattern of their death that would have led us to believe it might
have been cancer. We then did record searches of all the registries
in Canada; as you know, they have some really nice registries. We
investigated all the death certificates, and these were all done with consent
forms from the individual relatives or the person themselves.
The advantages again are we had all the pedigrees computerized, so we
already had all the genealogies, 1700s to 1980 at the time; we collected
new genetic and medical data on cancer, '58 to '82; and we tested various
hypotheses on the population. Now, I have to tell you one problem
which you may have already hit, is if you're trying to find death certificates
and medical records in these populations that are rural, it is really difficult
when you get back very far in time. So we had a lot of uncertainty
in the corresponding records. In a lot of places, the courthouse
burned down, you know, the people lost in the flood, you know, it was really
incredible amounts of stories. Now, I want to just reiterate again, because
I think this is something you're all thinking about if you're doing new
studies, it is important to have something, I think, that is a unique identifier,
which we had a FINDIV that preserves confidentiality. Orientation
number (colony of birth), we had procreation numbers (colony of marriage),
this is how we identified the movement from colony to colony.
Now, we talked about preserving confidentiality. And I have to
tell you there are some other problems with this. Carole Ober told
me that recently, they published a pedigree with the family's permission.
But I guess the family didn't really see the actual manuscript before it
went out, she just explained that she was going to publish their family
pedigree, with the genetic disorders segregating, where you tell who the
carriers were, but she said that she would disguise the pedigree, so that
no one who knew them would know (1), it was their family, and (2), who
in their family were the carriers. When the paper came out, she gave
the paper to the family in person, and they got very upset. Because
it turns out that although she had symbolized everybody as a little diamond
so you couldn't tell the sex, and didn't say anything about what the family
was or who the family was, but they knew it was a Hutterite family, and
it was such a distinctive pedigree that they knew that their neighbors,
if they ever saw that, in the colony, would know immediately which family
it was. And that didn't bother them as much as by the birth order,
everybody in the family would know who the carriers were. Carol was
very upset at this; it was too late, the paper was out, but as we talked
today about some of the times when we're trying to be confidential and
preserve it, you can't always be sure you've done that.
Again, I think it's impressive what Steinberg started in the '50s. And
these are just some of the studies that came out on the Hutterite population.
Eaton and Mayer was an early one. The investigators really found
the population, and that's who Steinberg heard about and went out there.
Sheps is a fertility study. Arthur Mange and Steinberg and some other did
inbreeding studies. And inbreeding is about the level of second cousins
once removed, and it hasn't changed a whole lot; I guess it's going up
over time, but not dramatically.
The study I did: I traced back that there were only, at that time, 25,000
people, but they all traced back to genomes in 67 and 68 individuals, of
which 44 were common, so it was a very small number of founders in this
population. There are only fifteen surnames, in the population The
studies that are still in progress are HLA infertility, health profiles,
for example, asthma studies and so forth. Fertility trends are very,
very much being studied at the University of Chicago.
Oh, and by the way, Dr. Ober told me that the cooperation level is so
high now that the women in the colony are actually keeping their own menstrual
diaries, including when they have intercourse. She's worked with
them and educated them on you know, the whole hypothesis. So they've
gotten another benefit here, real education in reproduction. She goes out
and confirms data a lot, but they mail diaries to buccal her along with
smears so she can get DNA analysis, and so forth. So they really,
are cooperating to the nth degree. Some of the men are questioning the
women why Dr. Ober has to know when they have intercourse!
Some of the things that Steinberg did not start out studying, and really
were only added recently, are the DNA studies. And not just in Hutterites,
but all of us have been talking today about what do we mean with the new
genetic technology, or we wouldn't all be here today. I mean, why
is there such a big group here, why are we all we concerned about it?
It's because now, we're getting into isolating genes, not just studying
patterns of genes, but actually taking them out, sequencing them, finding
out in the laboratory what they do, finding out what chromosome they're
on, and -- and here's the scariest part for a lot of people -- we're manipulating
them. Now, a lot of people worry about this, and you point out that
humans have been breeding and altering plants and animals and, to some
extent, their own populations, for eons. The difference is it took
much longer to do breeding in the field, you know, the selective mating
of your pigs and your dogs and whatever, or trying to pick the right spouse
for your kids, whereas now, we can actually take things and do it much
faster in the laboratory, and we can mix up genes, which we couldn't do
before. I mean, you can now put a plant gene into a rat, if you have
the right components, or you can move genes around. And that, I think,
is what's starting to scare people, and part of why we're here today.
People are concerned and they're confused. You know, what does
this all mean? And I think again, that's what we're all saying: Well,
what does this all mean? We're now gong out to populations saying,
give us your genes, give us your DNA. And we're saying what's going to
happen to ours? Are people going to fiddle around with my genes?
Are they going to mutate them? One cartoon showed a more lamenting:
"I had the weirdest feeling that someone was fiddling with my genes during
the night." I mean, this is not an inappreciable concern. Why is
that a public concern? We've talked about it this afternoon.
Change, any change is suspect, and then people worry you're tampering with
life, and that goes along with religious objections. And privacy
invasion. If you take a blood sample, it's maybe not so bad, but
take out a blood sample and tell them you're going to look at their genes,
or isolate a piece of their DNA, that starts to get scary to a lot of people.
And I think it doesn't hurt to think about it. But there are
some things that people are worried about, I think, that they haven't pinned
down why they're worried, and I think it's up to groups like ours to educate
the public, and ourselves, to what are the real concerns, or this is just
what are some things that worry them that have no basis.
Because in this area, we are discussing today, you can see this is vague,
like Skyler. "Quick: what's nine times seven?" "Oh, high fifties,
low sixties, somewhere in there." Teacher is not impressed.
Why not? Skyler says, "That's what I hate about math, no gray areas."
Well the problem, I think, in the areas that we're talking about today,
there's plenty of gray areas. So the trick is to try to keep a focus
on what are the factual bases. Why do we study human populations?
I think we have to remind them and ourselves! We want to ultimately benefit
mankind. Look and see what ancestors are out there in skeletons,
but basically most of us want to help people and help ourselves.
First of all, you've got to do some tests, and hopefully not at the last
minute, and there some limitations to lab studies where you really need
to do is see what's happening in a population. And that's the main
reason we need those types of studies.
Now I get to the part where Dr. Turner told me people may throw
tomatoes at me, but that's okay, because I'm almost finished! Will
you throw transgenic tomatoes because of all the new genetic technology,
we've gotten into areas where lawyers are getting involved, for the intellectual
property aspects, and the ownership of property and so forth. If it was
the witches of Macbeth a lot of people think about lawyers. "The
skin of a reptile, no, no heart. He's making a lawyer!" If
you're talking now about lawyers dealing with intellectual property,
it's important to know what intellectual property is. It's really
the right of an individual, so it's a little different than what we were
talking about, it's the rights of an individual relative to the community.
The rights in intellectual property can be enforced by the state, usually
on an economic basis, not a criminal charge. I mean, you violate
intellectual property, you have to pay somebody a lot of money and/or stop
Now, the patent issues are, what can you patent? What is patenting,
and how can you get at this patented technology, if you want to use it.
I'll digress here for a moment, because I was reading in one of these articles
-- and I don't know if people are called Native Americans now or Indians,
I'm getting a little confused. I thought it was Native Americans,
but then I think some of the people, who are members of this group got
up today and called themselves Indians. So, whatever this indigenous
American group is called, I was reading, some are anti-patent, because
of land patents. So I was a little confused, and I checked into that
term. It turns out the word "patent" merely means "grant from a government
of something the government can give away." It turns out the land
patents, which are still going on, were the government giving away government
land (or what they thought was government land) to non-government individuals,
to private individuals. And the Indian lands which the government
had given away, by land patents, were lands that originally belonged to
the Indians. Now the patents I'm talking about are not that kind,
and I'm hoping they'll be clearly distinguished there. In a way,
it's simpler. The U.S. Patent and Trademark Office grants the patents.
And it grants the patent for inventions. You have to have an invention,
not a piece of land, to get a patent. And this again, is nothing
new, man has been inventing things since way back here in the caveman days.
"Hey, look at what Zog" – is a cartoon showing cavement cooking their chicken
or whatever, with their hands, and Zog has his over the fire on a stick.
And this is what humans have been doing through time making technological
improvements. That's why we're all here with fancy lights and slide
projectors; we keep inventing things.
In order to protect the inventors and give them some recognition, they
can write up patent applications saying, "Hey, I discovered this stick
that cooks chicken over a fire without burning my hands." It is disclosed
in what's called a specification. And I'm not getting into the details
of patent law; you can see me at the bar if you really want to hear that,
but claims are the things I want to mention to you. Because people
get excited when they say, "Oh, there's a patent out on a gene, or on a
this or a that." You have to, before you get excited, read the patent,
and have someone tell you what these claims really cover. For example,
the Patent Office recently, and we were just talking about this at one
of the biotech meetings in Chicago, the Patent Office recently decided
they might allow claims for ESTs (these are little pieces of DNA that are
like tags), claims that would say a DNA sequence or part of a DNA molecule
including or comprising an EST. The Patent Office would not maybe
grant something saying a gene comprising EST. Anyone in the field
knows what distinction they're making, what they were worried about?
Well, if you have an EST and you say you're giving them the inventor, a
claim to a gene comprising an EST, later on that inventor might say, "My
patent covers the whole gene, not just the little tag sequence I found."
Whereas if you give them a claim that says the DNA fragment comprising
DNA, there will be an argument that they didn't get the whole gene, because
they didn't know it. They only get that little fragment with the
EST. Now this is kind of semantic and subtle, but that's what patents
are: semantic and subtle. So before you get excited about a patent
you hear about, get it, read it, or have one of your friendly patent lawyers
tell you what do the claims really cover?
How do you get these claims in a patent? You have to have something
new. What does that rule out? You can't go to the rainforest,
pick up a plant, come back and get a patent on it. It has to be useful,
that's pretty easy. Non-obvious is something I won't go into; it's
a subtle thing that the Patent Office uses to reject everything.
And by the way, almost without fail, the Patent Office will reject the
application the first time on anything that's biotechnology. They
will reject it on at least this obvious ground. And then you have
to have some lawyer argue with them that it's not obvious. Now, you
have to be careful; I remember flying out with one of my clients, an inventor
from a big university, and he said he was reading the rejection from the
Patent Office. He said, "Oh yes, it's obvious! I just put this
together!" and I said "No, no, don't say that." Because what you
as scientists is "obvious," is not what the legal definition is.
You try to be modest. I enjoy working with my clients because, and
I came from science, so I know where they're coming from. You publish
a paper, you want to make it sound like, "Oh, no big deal, it was just
really easy to do this." You go to the Patent Office, because and
you should, and want to say, " I had a terrible time, I had to do this,
I had to do that" In reality you forget, you've been working on this
for five or six years, you forget the difficulties you had. It's
overcoming those difficulties that may get you a patent. Because
what patents are doing is rewarding inventors who have come up with something
new, that's not easy to do, that's useful to society.
Now what is a patent on an invention once you get it? It does
not give you ownership of the what you claimed. If you have a claim
to a gene sequence, it does not give you ownership of the gene sequence.
What it does is it gives you the right, optional right, to keep somebody
else from making, using, or selling the gene sequence. So it's really
important to keep, whatever your positions are, when you're arguing about
then that it's what’s claimed that you get to protect. You get the
ownership of the patent, not the thing you claimed. And what's in
the claim is yours to optionally keep other people from making, using,
or selling. Now in reality, what does that mean? You get a
claim for a DNA sequence, you find out it's great, and you're using it
in a diagnostic assay to find out if somebody's got a disease, genetic
disease. You may have then the ability to keep other people from
using that diagnostic test, unless maybe you want them to pay you royalties
or whatever. Now in reality, you as the inventor have to go out usually
and find some company who's going to give you some money after you've got
your patent, or as you're getting your patent -- why? Not all patents
are granted, and not all patents, even you get them, are worth a hill of
beans. This is a guy who went into the Patent Office and tried to
patent a “tuning spoon.” Another near brush with fame; there's plenty
What can you patent? You can patent a transgenic mouse, a life
form, if there's some form, quality, property or combination that's new.
It has to be new. And in 1980, the U.S. Supreme Court said, "Yes,
you can patent, you can claim a microorganism that has a recombinant genetic
setup that makes it equally well or more efficient than the natural kind,
or than some of the other recombinants." So in 1980, that was a turning
point in biotechnology, when the U.S. Supreme Court said life forms are
patentable. And if you think that's new, they point out in their,
write-up in the decision that people like Louis Pasteur had already patented
a certain kind of yeast that he used that did a better job in brewing,
so there are all kinds of interesting old patents. The Human
Genome Project is trying to patent these various things: DNA segments,
enzymes, transgenics, probes, vectors. You can patent a method or
computer software. Now, I said that the patent doesn't give you the right
to own the thing you claim, it only gives you the right to keep others
from using it. In the U.S., not in the other countries, but in the
U.S., the inventor has the first ownership of the patent. If the
inventor wants to give up that ownership -- of the patent now, not of the
invention -- he or she can assign it. Now, usually you're working
for a university, so you have to assign it to the university. If
you're working for a company, you have to assign it to the company.
If you're an independent inventor, you should assign it to somebody, because
otherwise you're not going to have the money to follow up on it if you
do want to do that. Now some scientists say, "Well, I never want
to benefit from this patent, I don't want to sell it to a company, I don't
want to do anything." Remember, what it's giving you is control.
You don't have to enforce the patent, but when it's out there, everybody
knows they better not make, use or sell that, or they risk your coming
after them. So even if you don't exploit it, you can keep other people
from practicing your invention. And sometimes inventors want to do
that, because they're afraid of what other people will do with their discovery.
So there are many reasons to get a patent.
Well, the U.S. Constitution provided patents to give economic incentives
for people to invent and not hide the invention and to give inventors recognition.
The provision in the Constitution, was to encourage people who at the time
were keeping a lot of stuff secret. This way, you reveal the patent, and
it's up to the other people to then go further. You get a gene, you
figure out what to do with it in the next patent. I said you don't
have to enforce it. You can have this beautiful patent, it looks
very pretty, you don't have to do anything. If you want to do something,
you would sue people for infringement, you say, "You're using, making or
selling my claimed item." You can get damages, which is money, or
you can tell them to stop. I know this is kind of dry, nothing like ending
up with a legal session.
So again, just to reiterate: you can patent methods, you can patent
compositions, organisms, whatever. But they have to be new, useful,
and non-obvious. Now the big question is again: should genes be patented?
One thing you have to think about is how to define a gene, and there’s
the little distinction I told you the Patent Office was making.
A complex but useless invention may get a lot of research grants!
We all wish we had some kind of apparatus like this! And this is
the kind of thing you can't patent. You can't patent something that
doesn't have a use. Those of you who follow the argument with the
NIH ESTs and so forth, remember that was one of the big arguments, that
they had no use. The Patent Office since then has really loosened
up. If you can show any use that is credible, but is not totally
crazy, this criterion will be satisfied. You don't have to show that
it cures cancer, you can just say it's something that would be a diagnostic
test. You don't have to say it really works! What's going to
happen if your patent doesn't work? Well, nobody's going to bother
with it, nobody's going to replicate it, so nobody cares. And that's
what the Supreme Court said to the Patent Office: you're not the FDA, it's
not up to you to decide whether inventions work. It's only up to
you to say that the invention has credible use.
Now, people worry, should we patent these DNA sequences? And you've
all heard, these fights that are still going on. It's important to
remember that it's only patentable if it's new, if it's made by humans.
You can't just say, "I'm going to look at you and I'm going to patent your
genes," and you can't do that, okay? And if I do patent a gene that
happens to be in your body, the gene sequence is patented is isolated,
that doesn't mean you're infringing my patent! You're not making,
using or selling that isolated or cDNA, which isn't found in nature, or
the piece of DNA in something -- it has to be something that man did.
That's what the Supreme Court says: anything made by the hand of man under
the sun is patentable. So it has to be something not in nature.
Now, those of us who feel something should be patented say sure, if
it fulfills the criteria, it's something that's hard to get, if it's a
benefit for society, a patent is going to give you the ownership, then
it allows companies to have some protection taking that gene sequence or
whatever further, making gene therapy methods, finding anti-SENSE to turn
off the gene, making probes to DIAGNOSE the disease. There are those of
us, and I know, not everybody, who don't believe this restricts dissemination
or availability. Why? The minute you've got your patent application
filed. You don't have to wait for the patent to issue. It's
filed; you can publish. And the DNA sequences are out there.
Now, it's up to people to take that information that's now disseminated
and do other things with it, even though we've got a claim to that sequence.
In a cartoon, a lover says, "Marry me. My genes are excellent
and not yet patented!" This is a little misconception, because he's
again thinking that his genes could be patented, and his genes, as they
exist in him, in the aggregate, cannot be patented. You all know
also that there is a statutory provision against "slavery," so you can't
patent a human being. Now, some of us have wondered, well, if you
keep putting animal genes into human, could we eventually get something
that's sort of more on the side of the human? I think that's pretty
far-fetched, because of all the internal controls on human evolution.
It would take you a long time, I think, to replicate something like a human,
but it's a thought.
Now, just a word about transgenics. In a cartoon, a woman said,
"Well, I didn't mean to kill him; I just hit him with one of the new genetically
transgenic hard tomatoes." And you've all heard of the Colgene tomato,
which has some transgenic controls so that tomatoes didn't rot after you
picked them off the vine. That's not done very well, but it was one
of the first transgenic plants, and they have advantages. There are
a lot of other things coming out that might do better. As I understand
it, one of the problems was chefs didn't like the tomato, who knows why,
and the other reason is they couldn't grow enough of them in all these
different zones to commercially produce enough to feed the market.
We also have transgenic animals. What's good about this? One of the advantages
of the transgenic animal, and this has shocked me. One of my inventors
at the University of Illinois, and this is not confidential because our
patents are out, is working in the area of pig transgenics. I went
down there to look at the pigs and to see why we're doing this. The
inventor explained to me that these would be good for xenografts, creating
pancreases and livers and all this stuff for transplant into humans.
And I looked at this big, ugly pig, which was a Meishong Chinese pig crossed
with one of our kinds of domestic pigs, and I said, "Why are we using pigs?"
And he said, "Because pigs are the closest animal to humans, in terms of
organ size and immunology." I looked at this animal, and really was
But anyway, transgenic’s moving along. Companies are looking at
these pancreases that shouldn't because they've got human genes in now,
and they shouldn't have the transplant problems, because they're basically
trying to put some of our immune genes in there. This pancreas won't
react as strongly if they transplant it into a human. That would be beneficial.
Of course, there are people who don't believe in transplants on religious
grounds. And a lot of people think that genetic programming is saying,
:"My genetic programming prevents me from stopping to ask directions."
Well, I think we all have traveled with people like that. My parents
drove around Boston for hours trying to get off the freeway because my
father would not ask directions! But again, I think we have to remember
when people start worrying about this determinacy, that your phenotype
or your outward appearance, your inner appearance, whatever, is not just
your genes, but a result of your environment and other genes that are present.
So you've got to keep the complexity in mind.
Finally, one of the successful outcomes that we're all hoping for is
gene therapy, to actually correct the, defect not to just get rid of people
with any kind of defective gene, or not have them born, but to actually
correct the defect by introducing new genes. As you know, gene therapy
is going on now for some selective diseases, and my feeling is that in
the future, at least for some the single genes, they will have a lot of
therapies. I think I've given you a little hint of my experiences
with things that affect what you've all been concerned about. I certainly
have learned a lot from all of the talks today, and the conversations --
and I certainly will take, I guess a few questions. I will also be
probably hanging around here for a while, if anyone wants to get into more
detail in patent law, Hutterites, or anything else. Any questions
Questions and Answer Session
Q: Can you explain the difference between the sort of control that a
patent gives you, and ownership? You made a point of making that
Martin: Sure. Well, that's a good question. Ownership. Let's
say that you own your land, that your house is on. That means that
you can do anything you want with that land, within the law. It's
yours. It belongs to you, you can pass it on to somebody else, you
can keep other people off the land, just like with a patent. But
it's something that actually belongs to you, you can will it to people,
it's a thing that belongs to you. A patent only gives you the right
to keep -- well, if you use the land analogy, you don't really own your
land, but you could keep people from using your land. You can keep
them off -- it's more like a rental, you keep them off, but it doesn't
give you ownership of the land. You can't pass it on, you don't have
title to it, you can just keep other people off.
Q: You can't destroy it or...
Martin: You can't destroy it, no. Then you'd hit other kinds of
Q: The time limit on a patent?
Martin: The time limit on a patent right now is 20 years from the day
you file the patent application. Those who may have patents from
the past, it used to be 17 years from the day you got the patent.
And by the way, it usually takes years to get a patent through the Patent
Office unless you've got some Nobel Prize-winning invention. So now
it's 20 years from the day you file it, which means you want to hurry up
to the Patent Office so you don't lose time.
Q: You made one very interesting point --
Martin: Only one?
Q: That the people that you talked to still enter the data into the
genome database when they file a patent application. And that was
one of the big concerns at the beginning. I'm glad that's not happening.
Martin: It doesn't seem to be happening, if for no other reason then,
if you want to publish it, then most of the journals now make you put it
in the computer database. Plus the other reason you want to hurry
up and put it in there is you want to keep your priority -- you want to
stake out your turf, to this, "I found this. It's mine to control."
Q: It reinforces the discovery.
Martin: Right, reinforce your discovery. Now, we've had some odd
things. Like one of my inventors, the day we filed the patent, or
the day before we filed the patent, unbeknownst to us, someone published
in the gene database, in Japan, the cDNA. We had a cDNA and a genomic
DNA. They only published the cDNA. Well, of course, we didn't
realize this, because we checked there, but you usually don't check the
day before you file a patent. So the examiner found it and said,
"Oops, you can't have the DNA, somebody else has it out there." And
what we were able to do was convince him, which I think was a good argument,
that we should at least get the genomic sequence, because you couldn't
predict the genomic one, from the cDNA. And there was some value
to making diagnostics and things from use of the genomic molecule.
So patenting is a very tricky business; it's not an easy thing.
By the way, it does discriminate, the system does discriminate against
the individual inventor. This is an expensive procedure if you don't
have backing from a university or from a company, or private money, which
some people do, it may be possible to obtain, but neither commercialize
nor protect your invention. I think that is a flaw in the system,
a lot of us have talked about that. There's patent office fees that
are expensive, there's filing fees, attorneys. You can write it yourself,
you don't need an attorney, and the patent office gives you special consideration,
but usually in biotech, you need to hire an attorney. Then you argue with
the Patent Office, that costs money. To sue somebody for infringement
is astronomically expensive. To file in foreign countries, you have
one year from the day you file here to file in most foreign countries.
To do that, I mean, I just had an inventor who didn't get somebody to back
her. She got up to the stage where we now have to go in the individual
country, it's a deadline, and she had to come up with about $50,000.
And that's not anything in the U.S.: we're just paying all these
different offices around the world. Their fees, their translation
fees, are what run this bill up. In Japan, one of my inventors --
he had backing, so he could do it – spent almost $25,000 to have his patent
application translated into Japanese. And that's not unusual.
And you can't do it yourself. You have to use the accepted translators.
You think it's bad in the U.S., well, you try to go around the world, and
it's really expensive. The problem is, if you don't go around the
world, and you've really ended up with something good, you pass that deadline,
and then other people in other countries can just make it at will, and
steal your markets.
Q: Let's say you're a geneticist and I'm a subject, and you take my
blood and you work on it, and find some cDNA, and you file a patent on
it. You don't own my DNA, but you have some sort of rights to it.
You could make a lot of money off it, which I can't, because I don't have
any right to what you've done on my cells. But on the other hand,
you couldn't have done it without me. And it stands to reason, that,
in my mind, that's a heck of an altruistic act on my part, to have allowed
you to do your research, with my participation, even though I'm not going
to get anything out of it. I guess my question is, what is my incentive
for allowing you to start that process, by taking my blood and working
on my genes?
Martin: Well, of course I think the consent form should make clear that
somebody could take these things and get a patent on them and eventually
there would be some money coming out of it. Which would mean if you
don't want to participate, you have to refuse. This is that Iceland
story again too. They certainly may make money off products developed
from genes. The incentive for you is often just altruistic, really,
or you're getting something else out of it, you know, some medical attention,
or some people just like to be in studies. Some people think as,
I guess, the Aleutians feel with the ancient DNA, well, no big risk, no
big benefits to me right now, so who cares. Now, the more intrusive
the way of getting something from you, the more the concern. You're
probably familiar with the story of the guy whose spleen was used to derive
a very famous cell line. He sued in California the company making
money. And the court very strongly said, and this has been held up
several times, that you don't own the rights to anything that's taken out
of your body. That's just where we are. Which means that people
should know that, so that if they don't want something taken out of their
body, or if you want you can make a deal. I mean, you can always
make some kind of deal with the investigators, if they want something from
you badly enough. They might not agree, but if you're free to negotiate
with them. There have been, I know, people who've gotten paid for
things. Not necessarily royalties usually, a lump sum.
Q: . . . but then this leads to when you're filing your patent application,
do you have identify what it came from? And I'm just thinking, I
just went through having a baby, and I cross off everything. I say
no, no, no pictures, no samples, no anything. You know, even though
I was being drugged. But does that mean, I mean, but then yet, my
stuff is out there, and I will know what happened to me?
Martin: Well, it is a worry. We all, I think, are worried about
the confidentiality of samples that are taken from people. I mean,
that's almost a separate issue, and that is a big concern. For example,
the government, as you've been probably reading would like to have all
of us DNA tested, and our names would be associated with the DNA.
I think most of us are very leery about that! I mean, they can give
all the reasons they want, but it smacks a little too much of Big Brother.
When you get the patent, you have to tell people how to practice your invention.
That's part of the bargain you're making with the public. So you
would have to say how you got this DNA sample, but you don't have to say
who it came from, because that's not important for people trying to replicate
it. They don't have to go back and get your blood sample, because
you have now told them what the sequence is, and how to get it. So
they don't need now to go back to you. All they have to know is basically
in general the sources, it's called enablement. You have to enable
-- so if you pick up my patent, and you read it, you have to be able to
go and do what I did. But you don't have to do it exactly the same
way. You don't have to go out and find your blood again. As
long as you can do what I claim. If I claim a sequence, and I tell
you what the sequence is, you can do it yourself in several different ways.
Q: I like what George says about the Morris case. He paraphrases
Naomi and says only the can own cells. Basically, everybody else
can own cells, with or without informing the patent. In Morris' case,
he gave them consent. But I wanted to go back to the question of
a life patent. Just because you have the PTO issuing life patents
doesn't make it right.
Martin: What do you mean?
Q: Just because you isolate, you know, a genetic characteristic within
a living genome, you didn't invent it. And I think it's just a slippery
slope that is probably taking... The U.S. is leading the way in this, and
it's now become very well established through international superstructures,
economic superstructures, and so on. But I still don't believe
it's right. I think that a lot of countries in the world are trying
to stop it. The European countries are, for sure, continue to hotly
debate it in both directions. And so I'm just saying that there's
no way that any scientist in this room can claim to have invented a natural,
biological process, and the isolation or the copying of that DNA sequence
really still doesn't mean that they made it.
Martin: Well, you must clearly define what an invention is. An
invention means that the hand of man took something natural and altered
it. In your body, there is no cDNA. It does not exist.
So if you patent, which most of the genes are, in the form of cDNA, that's
not in your body. Somebody did invent that and isolate it in the
lab. And if you take an isolated fragment of a genomic DNA, you had
to remove that and you have to sequence it. It's not a natural thing,
because there is no such thing as an isolated genomic piece in your body
or any other plant or animal body. There is no such entity.
It has to be intervened by the hand of man. And it's, when, you know,
you talk about the European countries, they're actually allowing genes
to be patented now, and when you try to pin people down, well what is the
downside of allowing a patent on this sequence? Nobody yet has been
able to give me a reason except a religious reason. Nobody's been
able to give me a reason why this is going to be detrimental to either
individuals or populations.
Q: I remember reading a story at one point about a famous cell line,
and you know, the one aspect of that was that -- this is a cell line, I'm
not going to remember the history probably as well as some people.
But the one aspect of that was that in one sense, the person, in a sense,
who donated the cell line without her knowledge, and she died of ovarian
cancer, I think it was ovarian cancer, is that what it was? But the
interesting thing about that, about the legacy of that story, was that
her cell line, which then continued to grow over tens of years, began to
be identified by her. And some creepy aspect of this was that racial
characteristics were being applied to the cell line, and gender characteristics
were being applied to the cell line. Because the cell line, one of
the things that it, you know, that began to be said about it, was that
you know, it had a sort of a lascivious nature, that it would infect other
cell lines, and that it was, because it get into, had this quality of getting
into other things, someone else is going to have to do? But there
was a quality to this in which specifically racial and specifically gender
characteristics started to be applied to this cell line because of the
woman who it had been associated with. So there were some weird aspects
Martin: I have to say, I've never heard -- I mean, I know the cell line,
and it's an immortal cell line, as many of the cancer cell lines are, and
it grows forever, but I've never heard this story. Anyone else know that
story? I don’t' have any recollection of a lascivious cell line.
Q: Well, a paper will be published presently, and a book that's coming
out in the Center, that's why I know. I have to edit it in about
three days now, and I remember when it was given, at a conference on biotechnology
at the Center two years ago, and there was, there was something very disturbing
about that story.
Martin: Yeah, I'd like to see the book. I knew the cell line got
contaminated from other cells over time, so when they finally checked it
out, the cell line these people were all using wasn't really the same cell
line they started out with, but I never knew... Anything else?
Q: How are people defining genes?
Martin: Well, Dr. Steinberg told me a gene was a section of DNA that
encoded a single message or polypeptide chain or, you know, peptide.
And so it was an entity that acted as a unit under control of a regulatory
[inaudible], and produced something that was identifiable and discreet.
I think nowadays there's a lot of argument about what a gene is.
To me, that's still a good definition of a gene, as distinct from -- it's
an operational unit -- as distinct from just a piece of DNA. And
you know we've got tons of DNA floating around, and we can't tell if it
does anything. So I think the word "gene," and the reason the Patent
Office has gotten sticky, I think with good reason, if you don't have possession
of the gene, you haven't really taken it out, and you send in a patent
application, which people are doing. They say, "I claim the gene
for high cholesterol,” whatever. Okay? People were starting
to get some claims to patents like that. But when you think about
it, any of us could then sit down and write a patent and say, "I claim
the gene for this, I claim the gene for that," you know, it would
be ridiculous because you didn't really invent it. So now the PTO
is cutting down, where you have to prove possession of the gene, and the
reason they're pushing sequences as opposed to just saying you showed a
gene in a family, is to prove that you actually have the gene in your laboratory.
You have the sequence, or if it's a whole gene, you have the whole gene.
Now, the problem with that is the Patent Office is now only giving you
the molecule with the sequence you actually worked with. Now, a competitor
comes up and says, "Gee, that's a great patent, I'm going to just change
a few nucleotides over here, I'll still get a functional protein, and I'll
claim that." And so what you're ending up with is a lot of people
with claims to essentially similar things, which in some cases is going
to block anybody from using any of it, probably, which is kind of a standoff.
Q: I guess I'm still not clear on --
Martin: A gene is a DNA molecule, okay?
Q: No, no, I have another one.
Martin: Oh! Okay, okay. Well, I have to tell you, I lectured
to the law students at Marshall one time, and it was when the O.J. Simpson
trial was coming on. You know, there was so much about DNA testing
and that. And these are guys who are probably in their mid-20s, they
already had their law degrees, so I kind of figured they all knew about
DNA, and that DNA molecule I showed you? I just showed that, and
then I went on with all this case law, and all this. And they're
all looking at me, and finally I said, "You do all know about DNA, you
know, and genes, and all that?" and they shrugged. So I had to go
back and try to explain DNA, and I said, "Well, if you have any questions,
wave at me." So one guy waved at one point and he said, "Could you
explain patenting a DNA sequence in terms of patenting a bowling ball?"
And I'm rarely at a loss for words, but... [laughter] So the
next year I went back, I started with basic genetics, and I went through
the whole thing. But that didn't answer your question. Go ahead,
that's a digression.
Q: So when someone submits a patent for a gene, are they saying this
is an original sequence?
Martin: Well, see, you can't anymore even try to say a gene for whatever,
without having either some way... See, what happens in your claim, you
have to make it so that if someone picks up your patent, he/she knows if
what he/she's doing would infringe your patent. So if just say a
gene for something, and you don't give its characteristics, you don't give
its sequence, and you don't give how you isolated it, you can't get that
claim. That's not a patentable claim.
Q: So people can't say, "Here's a bat, and I want to patent the sequence
contained in this bat." You can't do that?
Martin: No, although in the which?
Q: Or some kind of vector...
Martin: If you deposit the vector in a depository like the ATCCC, and
you say, I'm claiming this vector with this ATCCC number, even if you didn't
have time to sequence it, there's some argument whether you can get --
you can probably get a claim to that vector you deposited in an E. coli
or something. If somebody else later came along and found the sequence,
that's where the argument begins. Do they also get a claim to the
sequence when you've got the vector sitting there? That's an arguable
point right now, that' s not resolved. A lot of these things are
not resolved yet. One more?
Q: I had a question. I was wondering about this. It's kind
of an absurd example, but under the criteria for patenting, novelty, hands-on,
couldn't two parents put a patent on their child because it's a novel,
unique, it's never been made before? Certainly, man was involved
in this process... as a child, you can't touch it, is that possible?
Martin: Well, number one, by our Constitution, you can't patent a human
being, even if that were satisfying the other patentability criteria.
And I think that the Patent Office would go back and argue, even if that
were the restriction, is that it would be obvious, that everybody can do
this sort of think, you know! But I think it's a good thing to think about.
Q: Well, I was wondering then, because if the Indians patent all their
kids, that would solve a lot of problems.
Martin: Yeah, right now you can't do that. You can't even patent
your animals, unless they are something that you, you know, made special.
You can patent, by the way, and I have, plants that you made by breeding
experiments that come out to be new plants. I mean, we've done that
for years. Corn, for example. Thank you.