Barely had the last nucleotide in the genetic code of the SARS coronavirus been read when the race to claim intellectual rights to the sequence began. And among those filing was the US Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia, in what was essentially a pre-emptive strike (see page 214). CDC director Julie Gerberding told reporters last week that, in private hands, a patent on the viral sequence might delay the development and refinement of tests and treatments for the contagious pneumonia that has already killed several hundred people.

Gerberding's admission gives tacit acknowledgement to a growing concern among biomedical researchers that broad patents on genetic sequences may, in some cases, have a stifling effect on research and negative consequences for public health. Take the struggle over predictive testing for breast cancer based on the BRCA1 and BRCA2 genes. Since the Utah-based company Myriad Genomics won a European patent on the genes in 2001, the Curie Institute in Paris, with the backing of the French government, has been fighting for the right to continue testing women for the genes, which it can do for about a third of what Myriad charges. A similar situation exists in Canada, where several provincial governments have told their health authorities to continue testing in the hope of ultimately winning in court the right to do so.

Although the extent of the problem is hard to quantify, the calls for action are growing louder. Britain's Nuffield Council on Bioethics last year recommended that in future, patents on genetic sequences should be the exception rather than the rule. In Canada, a report issued by Ontario's provincial government, following its experience with BRCA1 and BRCA2, explored solutions such as a compulsory licensing scheme in which a public entity would determine who should have access to which gene patents, and even set licensing fees. The Canadian Biotechnology Advisory Committee is now set to move the proposal on to the ministerial level in the federal government.

In the United States, however, there currently seems to be little momentum for change. Last year, US Representative Lynn Rivers (Democrat, Michigan) sponsored a bill in Congress that would have allowed healthcare entities to perform genetic diagnostic tests without fear of patent-infringement lawsuits. It would also have guaranteed an exemption from patent restrictions for basic research. But Rivers has since lost her seat in the House and the legislation has little hope of revival.

There are no clear-cut answers. But when pre-emptive patenting is necessary to ensure that rapid solutions are found to an important health problem, something seems to be out of balance. Policy-makers should investigate what checks and balances are necessary to ensure that the patent system continues to do its job of stimulating innovation for the public good.