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Last Updated

05 May 2003

Source: Wall Street Journal, May 5, 2003


Scientists' Hunt for SARS Cure

Turns to Race for Patent Rights


The international pursuit that led to the discovery of the virus that causes SARS is turning into a competition for patent rights.

Scientists in Canada who decoded the genetic make-up of the virus have filed a patent application in the U.S. seeking legal rights to all the virus's genes. Hong Kong scientists who first viewed the virus under a microscope are seeking to secure a patent on the germ itself. And the U.S. Centers for Disease Control and Prevention has submitted a patent application on its SARS findings.

The patent filings, which hadn't previously been made public, are sufficiently broad to allow their holders to claim rights in most diagnostic tests, drugs or vaccines developed to cope with the outbreak. Researchers are divided over whether it is appropriate to seek commercial gain from the discovery of the coronavirus that causes severe acute respiratory syndrome. Still, the patent applications reflect a scrambling for competitive position among both scientists and companies since SARS began rampaging through 28 countries in February.

Some companies already have jumped into the nascent but highly uncertain SARS market. A few gene-based diagnostic tests are already available, and major industry players, including Abbott Laboratories and Roche Holding Ltd., are moving to manufacture their own versions. Merck & Co. and Aventis SA are among the pharmaceutical makers exploring the possibility of using the coronavirus genes to develop a vaccine.

If efforts to contain the germ prove unsuccessful or if it reemerges seasonally much like the flu, the market for tests and treatments ultimately could be huge. But if the impact of the virus wanes after the current outbreak, companies will have little incentive to pursue the market. SARS so far has infected as many as 6,234 people and killed 435 in China, Hong Kong, Canada and elsewhere. But in relative terms, the toll remains small. By comparison, an estimated 15,000 people a day are infected by the virus that causes AIDS.

The rapid discovery of the SARS virus was coordinated by the World Health Organization in Geneva and hailed as a case-study in international scientific collaboration. Behind the scenes, however, scientists have maneuvered to secure both credit and commercial rights to their findings.

Researcher Malik Peiris and colleagues at the University of Hong Kong were first to spot the coronavirus under the microscope in late March. "It's very competitive, but we think we are the early bird," said Hailson Yu, deputy managing director of Versitech Ltd., a unit that handles the university's intellectual property portfolio and has begun filing patents. Even the promise of a patent can attract investors, he said, adding that the university was negotiating agreements with commercial partners for a diagnostic test and other products.

Canada's British Columbia Cancer Agency, whose Genome Sciences Centre was first to determine the germ's genetic make-up, confirmed it has filed a provisional patent application in the U.S. claiming commercial rights to the complete genetic sequence of the coronavirus.

And Andrew Watkins, the head of the Atlanta-based CDC's technology transfer office, indicated through a spokesman Sunday that the government agency had filed at least one provisional application on the SARS virus. The CDC said it was aware of the patent activity by other groups, but didn't provide details of the timing or contents of its own application.

The Genome Institute of Singapore, and biotechnology company Chiron Corp., Emeryville, Calif., also quickly decoded the virus's 30,000 units of RNA code. A Chiron official declined to say if the company had filed a patent application. The Singapore group didn't return phone calls.

Klaus Stohr, head of WHO's influenza project, said he doesn't believe the patent filings will hurt SARS research. "I don't think this will undermine the collaborative spirit of the network of labs," he said. Having spearheaded the extremely rapid process that led to the identification of the coronavirus, "we have to look for other forces" to take up the gauntlet. "At a certain point in time you have to give way for competitive pharmaceutical companies."

The intellectual-property claims on SARS may set the stage for a reprise of past scientific squabbles over major findings. Patents secured on the genes of the virus HIV-1 by Robert Gallo at the U.S. National Institutes of Health in the 1980s, for instance, once pit him against the virus's co-discoverers at the Pasteur Institute in Paris. Today, both institutions profit handsomely from royalties on diagnostic tests.

It's also possible to patent a virus itself. "If you are the first person to isolate a virus, you are entitled to claim that. The virus may be old, but the isolation is new," said James Haley Jr., a patent attorney at Fish & Neave in New York.

Immediately after the Canadian research team completed its gene sequencing of the SARS virus in mid-April, the group's licensing staff made a hurried, weeklong effort to compose the patent application. The British Columbia Cancer Agency included details of the virus's genes, scientific analysis and general description of how the knowledge would be converted into diagnostics and treatments.

"The filing is to ensure that it is available to all, as opposed to making any kind of effort to delimit its distribution," said Samuel Abraham, director of the British Columbia Cancer Agency's technology development office. He acknowledged, however, that the agency might seek royalties and other payments to fund more scientific research within the province. "If the strategy is ill-conceived, we will drop it and there won't be a patent," he added.

But Marco Marra, head of the Canadian sequencing team and director of the agency's Genome Sciences Centre, said in an interview that he doesn't want his name on the patent application. By doing so he would forgo any of the 50% of licensing revenues the agency normally allocates to inventors. Dr. Marra says he believes genes shouldn't be subject to patents because they aren't true inventions and because they are now so easily and quickly deciphered.

Scientists elsewhere share Dr. Marra's concerns. Germany's Bernhard Nocht Institute for Tropical Medicine, which published its own identification of the virus in the New England Journal of Medicine, opted against filing for a patent. Researchers decided a discovery had been made, but no invention, said Barbara Ebert, a scientific co-ordinator for the government-run virology lab.

The rush to patent SARS findings doesn't stop at the genetic code. Several U.S. biotech companies say they have already filed for patents covering specific drugs to treat SARS and ideas for making them. For instance, Amit Kumar, president and chief executive officer of Acacia Research Corp.'s CombiMatrix unit, said last week that his Mukilteo, Wash., company had filed for patents on about 60 "antisense" drugs that could be used to inhibit the replication of the virus. Companies tend to file a lot of patents, but few end up being valuable. "Patents are a lottery ticket for us," said Dr. Kumar.

Jonas Salk, asked after he'd developed a polio vaccine in 1955 who owned it, answered: "There is no patent. Could you patent the sun?" The WHO has since wielded the vaccine to wipe out polio from most of the globe.

But these days, with the growing imperative to profit from basic scientific discoveries, commerce is never far from the minds of laboratory scientists. University of Hong Kong's Dr. Peiris says that his lab sent samples of the SARS virus to several other research teams, without waiting to write up patent applications. But he says when it became clear that others were filing for patents, he thought it best that University of Hong Kong should also try to patent the virus it found. "Why should we leave the field open to others?" asks Dr. Peiris. "If no one else was filing patents, I don't think we would have."

In most of the world, findings already published can't later be patented. This contrasts with U.S. law, which offers a one-year grace period. As a result, Dr. Peiris and the other groups that published before they began drawing up patents, are filing first in the U.S.

---- Gautam Naik in London and David P. Hamilton in San Francisco contributed to this article.