Patents, Profits, and Forensic Investigation: The Future of Crime Solving May Already Be Broken

Are you a fan of crime series, perhaps even true crime stories? Have you ever watched “True Detective”, “Sherlock”, or maybe even glanced at an episode of “Mindhunter”? If you have, have you ever considered what originally drew you to these shows? 

These series offer insight into human nature and societal norms, which can change over time. The crime stories depicted often date back decades, making them fascinating to explore. They frequently are modern echoes of past injustices and may attempt to reassess certain cases in light of evolving societal standards.

From binge-worthy Netflix series to viral TikToks and captivating adaptations of true crime stories, the genre has become a dominant presence on streaming platforms, establishing itself as a staple of mainstream media today. However, beneath the chilling narratives portrayed on screen lies a cruel reality. Unlike horror movies, where audiences can easily dismiss the events as purely fictional, true crime documentaries and series intrigue viewers precisely because they are rooted in reality. What often attracts people is the opportunity to explore stories that are disturbingly plausible, all within a controlled and non-threatening environment. 

However, the portrayal of reality in these productions can be questionable. The methods used to solve crimes are often misrepresented, particularly forensic scientific practice, such as DNA sequencing. Furthermore, many people are unaware of the legal frameworks that govern these meticulous methods, which are crucial to criminal investigations.

I. What is DNA sequencing and how is it used in forensic practice?

In Netflix crime series, for instance, DNA sequencing is often depicted as an instantaneous procedure that produces suspect profiles within mere minutes of collecting the evidence sample from the crime scene. It is almost presented as this sort of magical procedure through which, without a hint of doubt, an astonishingly brilliant detective (who most of the time is drop-dead gorgeous as a side note) gets to reveal all through one single fingerprint on a wine glass. Needless to say, that is not exactly how the procedure works.

Actual forensic practice is quite a rigorous exercise. Based on crime series, it is a common misconception that one fingerprint is enough for the analysis. In reality DNA sequencing is not done through the fingerprint ridges themselves, but it can be done through, for instance, the sweat and skin cells left behind, although it poses difficulties in terms of getting accurate results. Indeed, examining DNA samples collected at crime scenes is time-consuming, and profiling itself is quite difficult (and expensive). Therefore, most of the time, they are reserved for complex cases. Real forensic genomics involves a myriad of advanced genetic engineering techniques; only a few of the most important proprietary methods will be mentioned here to provide a better understanding of DNA sequencing.

The most frequently used routine is STR typing, often referred to as the standard ‘DNA fingerprinting method’. It seeks to analyse the sample in question using a set of Short Tandem Repeats (STRs). STRs are repeating DNA sequences, usually 2 to 6 base pairs, that are highly variable among individuals. Because every human has STRs, albeit in different patterns and with a varying number of repeats, STR analysis is the gold standard for forensic human identification and familial relationship testing. The sample is then often compared to law enforcement databases to find the closest possible match and identify the suspect.

Perhaps the most well-known method of all is Forensic Investigative Genetic Genealogy (FIGG), which gained popularity due to its role in solving the Golden State Killer case. The Golden State Killer, a former California police officer, was a notorious American serial killer, serial rapist, and serial burglar committing heinous crimes over the decades across the state until being eventually captured and charged in 2018 due to this exact genealogy method. The process is based on uploading crime-scene SNP (Single Nucleotide Polymorphism) profiles, which are later compared with public genealogy databases to build family trees and locate suspects or unidentified remains through distant relatives.

Finally, another quite commonly used technique is Forensic DNA Phenotyping (FDP), which is used to predict externally visible characteristics (EVCs) from the DNA evidence gathered at the crime scene, such as eye colour, hair colour, and biogeographic ancestry, when no data match exists.

So, on first reading, these techniques might appear so ‘magical’ as to provide a perfect match in mere minutes, and somehow, authorities just always happen to find exact matches of a profile in a database that is obviously available to them. Yeah no, that does not happen in real life. For this very reason, it is important to understand the legal implications of these methods.

Firstly, state enforcement can only search a citizen’s medical or personal DNA data with strict legal warrants. Gaining access to highly regulated criminal databases, or relying on carefully protected personal data in commercial genealogy databases, has its own strict opt-in rules; it is not as instantaneous as it appears.

What is even more interesting is that, the proprietary methods that have already been touched upon above, namely STR typing, FIGG and FDP, have been reformulated into more advanced techniques, using different machinery but essentially conducting the same exercise. As these techniques usually involve an inventive step to devise new and better methods for DNA profiling, patent protection becomes available for them. “Inventive step” is a core patentability requirement, as it ensures that your invention is not obvious to a person with standard skills in that technical field, assuring that your innovation is a true technical development and not just an obvious combination of existing knowledge. Whether that is indeed a beneficial thing is, however, questionable to say the least.

II. Legal implications and risks of patent protection in genomics

Before diving further into patents specifically relating to genomics, the term needs to be explained. A patent is an intellectual property right granted by the government to an inventor as a sort of reward for their intellectual labour. It gives the owner the exclusive legal right to exclude others from profiting from that invention without explicit permission, such as the use, selling, or reproduction of that invention. Typically, the protection period lasts 20 years before the invention needs to be made public property to balance competing interests: the rightful reward of the creator for their intellectual labour, as previously mentioned, and public access. Patents can be either products or processes; however, the bottom line is that they need to involve an invention, something which is not already part of the state of the art, to gain protection.

Companies often seek patents for the following, relating to DNA profiling: sequencing technologies, software tools used for that purpose, synthetic DNA constructs, and other laboratory methods used in the process. But why can this be problematic?

Excessive patent protection may hinder scientific collaboration, which can have serious consequences for forensic science. As noted, DNA profiling is crucial for suspect identification. In cases where time is critical, such as in the investigation of heinous crimes like those committed by the Golden State Killer, the ability to collaborate with companies to access advanced DNA profiling methods could potentially save lives. Additionally, this extensive patenting increases the costs associated with diagnostic testing. Even if collaboration occurs, accessing these patented procedures may still be prohibitively expensive for authorities.

III. Inherent tensions and reconciliation?

It can be established that the convergence of genomics and forensic science creates friction, particularly where intellectual property monopolies in DNA sequencing clash with the public sector's need for accessible, unbiased, and transparent criminal justice.

A counterpoint often raised is the possibility of patent licensing. Patent licensing is a legal contract where the patent owner, in this case, a corporation, grants another party, here the public authorities, permission to make use of a patented invention, without transferring the right of ownership. In exchange the licensee typically pays financial compensation. However, the practicality of this option is questionable. Multinational companies hold significant power during negotiations, allowing them to demand substantial licensing fees for the use of their methods. Consequently, forensic laboratories, especially underfunded public crime labs, face restrictive fees that make cutting-edge investigative tools prohibitively expensive. This situation leads to unequal access to justice depending on a jurisdiction's budget.

As a result, law enforcement agencies and forensic researchers may be forced to rely on outdated and lengthy DNA sequencing methods (which are not patented and therefore free to use) or ‘black box’ commercial testing services to generate leads. ‘Black box’, in this case, refers to commercial services that use proprietary algorithms or unreleased chemical testing methods to generate results, meaning that the underlying science and statistical calculation methods are kept as corporate secrets. This opacity causes several major friction points for enforcement systems, yet oftentimes there is no better option available to them. Furthermore, being forced to rely on publicly accessible databases raises concerns about the accuracy of their findings.

There is a clear conflict between the collaborative nature required for forensic justice and the proprietary databases and DNA sequencing processes patented by private corporations.

This prompts the question: can such tensions be reconciled? Unfortunately, the answer is more likely no. Corporations argue that they need to recover their research costs through licensing fees, positioning patent protection as essential for recouping investments in DNA sequencing technology. This perspective is driven by a profit-maximisation mindset, which, considering what is at stake, is crazy, irresponsible and selfish in itself; indeed, it does not align with the collaborative efforts that forensic science demands either.

Can reconciliation still occur? Yes, it is possible. Since patent protection is granted by the state, the state also has the authority to restrict it within its own national jurisdiction. If it recognises issues with the patentability of certain DNA sequencing methods, it can choose to limit protection through policy regulations. However, this approach has its downsides; it might discourage investments in the research area if companies no longer view it as profitable. Ultimately, the state controls the situation, but whether it is willing to take this step, considering the potential consequences, remains uncertain.

IV. Parting words

Behind our favourite crime shows and the often 'cool' depictions of DNA synthesis lies a darker narrative than the plot itself. What appears to be a fast and accurate process on screen is typically a lengthy and challenging procedure. The increasing number of patents on new DNA sequencing methods, which could help reduce the wait time for matches and enhance accuracy, poses significant challenges for law enforcement authorities. Although licensing is frequently discussed by public and private entities, namely the corporations patenting such DNA sequencing techniques, it remains more of an ideal than a practical solution, particularly considering that criminal investigative labs are often underfunded.

As for whether these tensions can be resolved, it is possible if the state chooses to prioritise collaboration between corporations and law enforcement agencies or if it decides to prohibit the patenting of DNA sequencing processes altogether. However, it is questionable whether such a move would be made, given that it could deter investment in this crucial area of research.

In the meantime, agencies have no choice but to focus on the tools currently available for DNA sequencing, ensuring that they are independently verified and peer-reviewed when made publicly accessible, and, importantly, not subject to patent protection to avoid infringement issues.