In spare moments, I’ve been wondering about the Advocate-General of European Court of Justice’s recent recommendation that patents involving human embryonic stem-cells be prohibited, and the response that it’s generated.  One of the best-publicised responses was the letter from Austin Smith et al that appeared in Nature, which complained that the recommendation would be bad for European science:

Scientists working in stem-cell medicine will not be able to deliver clinical benefits without the involvement of biological industry. But innovative companies must have patent protection as an incentive to become active in Europe.

The advocate-general’s opinion therefore represents a blow to years of effort to derive biomedical applications from embryonic stem cells in areas such as drug development and cell-replacement therapy. If implemented, European discoveries could be translated into applications elsewhere, at a potential cost to the European citizen.

At the same time, there’s a number of pro-life organisations and blogs that have welcomed the recommendation as a straw in the wind, and for just the same reason.  Where the pro-lifers and Smith agree is in the supposition that not being able to patent hESC-derived procedures will remove the commercial incentive to try them out; which means that they won’t get tried out; which means the hESCs won’t be used.

I may be missing something, but I don’t see it that way. Removing the ability to patent the procedures may lessen or eliminate an incentive to do the research, but there remains at least one other incentive to do it: the discovery and perfection of new medical treatments.  I don’t happen to believe (as some do) that medical innovation is a moral duty – but even I’m not dumb enough to deny that it’s a good thing, and that a world in which we have a treatment for Grim Death Syndrome (or whatever) may very well be a better one than one in which we don’t.  We may not have an obligation to research, but we do have at least a plausible a reason to.

And it might even be that not patenting hESC-derived procedures ought to be welcomed by people who care about providing medicines, notwithstanding the lack of financial protection, just because it means that the intellectual property involved in the science is free to move.  Non-patentability might be bad news for companies – but bad news for companies doesn’t necessarily amount to bad news for science or medicine.  Indeed, there’re a number of proposed mechanisms for regulating scientific IP that depend on it not being locked behind a patent-wall.  It doesn’t take too much imagination to see how a system of prize-funds, health impact funds, or public funding would be perfectly compatible with the maintenance of high rates of innovation.  At least for those states with public health systems (or the WHO), it might actually be cheaper to offer a prize fund and make the IP public so that there can be competition to sell new treatments, than it would be to rely on the private sector doing everything and then being forced to accept monopolists’ prices.  Plus, of course, there’d be moral credit even when it’s not financial.

Smith’s letter implicitly accepts that non-patentability doesn’t mean no more science – only that it’d leave Europe.  Again, though, from the point of view of science qua science, that doesn’t seem to matter much.  We already know that there’re Indian, Chinese and potentially a couple of African countries that are ready, willing, and able to pump out generic versions of new treatments; the same principle could apply here – and, presumably, so much the better for European buyers and nascent high-tech economics in the developing world.

If the ECJ does rule that hESC-derived procedures are non-patentable, it may of course have done so for dubious reasons.  I’m not going to comment on them here.  But even if that’s the case, it’s not necessarily a disaster for hESC-based medicine.

Any thoughts?