Patent dispute costs Robert Gallo the Nobel Prize

I've written before about how I'm opposed to patents, particularly software patents,
but also patents on biological discoveries. And pro-patent attornies and scientists have argued against me, here on this blog and elsewhere.

But this year's Nobel Prize in Medicine illustrates another peril of patenting, one that I'd never thought of: it can cost you the Nobel Prize.

How is that possible? The 2008 Nobel Prize in Medicine went to 3 scientists, Luc Montagnier and Francoise Barre-Sinoussi for their discovery of HIV, the virus that causes AIDS, and Harald zur Hausen for his discovery that human papilloma virus causes cervical cancer. Notably missing from the prize list was Robert Gallo, who many people believe deserves joint credit with Montagnier for discovering HIV. Montagnier himself commented, after learning that he was awarded the Nobel, that "it is certain that he [Gallo] deserved this as much as us two."

The history of the discovery of HIV has been documented in great detail elsewhere - including a 1993 movie, "And the Band Played On," that I highly recommend. But briefly: in the early 1980s, both Montagnier and Gallo were racing to discover the cause of AIDS. Montagnier is now widely acknowledged as having found it first, although Gallo announced his discovery soon after. The two viruses identified by the scientists were later determined to be the same, but Gallo was, for a while, credited with independently finding the virus. [The Nobel committee, in announcing the prize, said that there was "no dispute" that the French duo had discovered HIV first.] It was only much later - in 1991 - that independent NIH scientists determined that Gallo had, in fact, grown the French strain of HIV, which he had obtained from Montagnier and which had contaminated some of his own samples.

Gallo is, however, given credit for proving that HIV is indeed the causative agent of AIDS. The Nobel committee's press release acknowledges this: "several groups contributed to the definitive demonstration of HIV as the cause of acquired human immunodeficiency syndrome (AIDS)." Although their press release never mentions Gallo by name, many scientists thought (and still think) that this contribution by Gallo, along with his other groundbreaking AIDS work, would justify him jointly receiving the Nobel.

Now for the patent story: both Gallo and Montagnier filed for patents on a blood test for the AIDS virus. This spawned a huge controversy, in part because Gallo applied first, and also because Gallo's claim excluded Montagnier. The Pasteur Institute (Montagnier's employer at the time) sued the U.S. government in 1985 in an effort to share in the patent royalties. After two years of fighting, the U.S. and France agreed to share royalties on the patents, and in March 1987 President Ronald Reagan and Prime Minister Jacques Chirac held a joint press conference to announce that Montagnier and Gallo had independently identified the AIDS virus.

It was only after this press conference that scientists discovered that Gallo's virus was actually the same as Montagnier's, and that both must have come from the same patient.

Why did the Nobel committee snub Bob Gallo? Of course, they won't admit that they did any such thing. Gallo and Montagnier themselves have long since repaired their relationship, as indicated by Montagnier's generous comments quoted above. But the patent dispute caused deep and lingering resentment among a much broader community, resentment towards Gallo personally and towards the U.S. and its patent system. As was later revealed in an investigation by the U.S. Congress:
"Just minutes before the press conference, HHS submitted applications for U.S. patents on an HIV antibody blood test and a method of producing the virus. These patent applications contained the seeds of the French/American dispute; they contained fundamental assertions that could not be substantiated. Chief among these was the assertion that, "... we are the original, first and joint inventors ... of the subject matter which is claimed and for which a patent is sought ...." The real inventors of the HIV blood test were the IP [Institute Pasteur] scientists, who had developed and begun to use their blood test the previous Summer (1983). Dr. Gallo knew about the IP blood test. In fact, as early as September 1983, Dr. Gallo and his colleagues actually sent LTCB AIDS patients' samples to Paris to be assayed with the IP blood test.

Dr. Gallo and his colleagues did not disclose to PTO their knowledge and use of the IP blood test, nor did they disclose the IP scientists' considerable body of scientific work on their virus and blood test."
Not surprisingly, the patent application infuriated the Institute Pasteur scientists. NIH didn't behave well either - their response was to defend Gallo's claim uncritically. If Gallo - whose work was all publicly funded by his employer, the NIH - simply hadn't filed for a patent, who knows how things would have turned out?

So here's my advice to scientists with a hot discovery: publish it, and share it freely with the world. Don't apply for a patent on the hope that you will get lucky and cash in - you probably won't. And you never know what kinds of backlash a patent application may cause. You might just cost yourself a Nobel Prize.


  1. "The Pasteur Institute (Gallo's employer at the time) sued the U.S. government in 1985 in an effort to share in the patent royalties." ... Shouldn't that be Montagnier's employer?

    damn typos ...

  2. I don't think the patent dispute had much to do with Gallo not winning the Nobel prize. Instead it was the pattern of how Gallo acted--essentially stealing the virus and trying to prevent others from receiving credit for their work. The patent was only one of many unethical things Gallo was involved in.

  3. This is purely speculative and not well supported by anything other than the blogger's disdain for patents. On the other hand, it is quite readily accepted that Gallo behaved poorly in the whole event, as mentioned by the anonymous commenter above. Gallo has rubbed many people the wrong way and that is much more likely for his "snub".

    Steven S. Clark, PhD

  4. Steve: I freely admit to a disdain for patents (or at least for the patent system as it is currently implemented). But I'm not the only one who things the patent dispute cost Gallo his Nobel - for example, this article in Science from Oct 10 says:
    "The rift between Gallo and Montagnier, fundamentally about apportioning credit, exploded after the 1985 issuing of patents for the HIV blood test."

    The Nobel committee loves to maintain secrecy about their motives, so maybe the patent didn't affect their decision. But I'm just sayin'....

  5. "The rift between Gallo and Montagnier, fundamentally about apportioning credit, exploded after the 1985 issuing of patents for the HIV blood test."

    Notice that the patent was part of the rift caused originally by Gallo's grab. Gallo's rep was damaged by his whole unabashed attempt to own all credit for the discovery. The patent problem only piled on to his woes.

    Steven S. Clark, PhD

  6. Kudos, Dr.Salzberg for the nice blog. Eventhough I am one of the authors in your paper on PXO99 genome that appeared in BMC Genomics, I discovered your blog recently. I whole heartedly appreciate your efforts in maintaining the blog, supporting open access and promoting scientific temper. I liked all your posts on genomics, evolution and pseudoscience and in particular the post on "Evolution and the candidates". Truly, Obama's view on science and faith
    are refreshingly clear and highly impressive.

    Coming to patents, in India the national organizations like Council for Scientific and Industrial Research(underwhich I am working as research scholar!) are crazy behind getting patents, instead of promoting high quality
    science and education. I also aggree with your views on Ayurveda and all the nonsensical efforts to make it scientific, that to by NIH. I also like to mention you a recent article titled "Whole genome expression and biochemical correlates of extreme
    constitutional types defined in Ayurveda(" by a group involving our present director general. A good example of the use of public funds to do and promote Bad science oops.. ayurgenomics - a new term coined by the authors.

    Prabhu B. Patil
    Postdoctoral Research Associate
    Centre for Cellular and Molecular Biology (CCMB)
    Hyderabad, India

  7. The truth is that Gallo is a plain cheater. Imagine any lab that has its cell lines contaminated by a competitor’s virus sample. Any other smaller scientist would have lost their jobs and reputation. And how about using someone else’s photograph of an EM picture? A rich lab that has been trying to grow a virus ends up with a sample that has been “borrowed” and then claims it is theirs. And to top it all they file a patent application that is patently untrue. This is the worst behaviour for any scientist. The only reason that Gallo got away is that US and NIH realised that there is pots of money to be made and did not want to lose their share.. So browbeated the French into an agreement..
    Gallo does not deserve any Nobel. He should have been investigated and punished suitably.

  8. Prabhu, thanks for the pointer to that article about Ayurveda - it was pointed out to me before on this blog, on a still-active discussion from one of my posts in September 2007.
    I read the article and I agree with you - as I wrote in a response on that old blogpost - that it is very poor science. I didn't realize, though, that your director general was involved - that is really unfortunate.

  9. I'm a bit confused about the patent rights for the HIV-test. Robert Gallo filed the patent but his employer, the U.S. government, defended it, or (in news reports) filed the patent claim itself.

    Question: who owns it -- the U.S. government or Robert Gallo, and who is making money off it -- the U.S. government, or Robert Gallo?

  10. Mr. Salzburg, you write much hearsay and avoid straight facts. Understandably, given the non-scholarly journal for which you authored.

    Steve wrote: It was only much later - in 1991 - that independent NIH scientists determined that Gallo had, in fact, grown the French strain of HIV, which he had obtained from Montagnier and which had contaminated some of his own samples.

    Try to recall that the first HIV or LAV cell-line was "successfully" cultured, continuously, prior to 1991, using a technique T-Cell Growth Factor, Il-2. You missed that one. This allowed for causality, as well.

    The French were equally guilty in scrambling for prestige/$$. The IP would not concede completely on all of NIH's scientific merits. Thus, therein began the separation or trust in this marriage. We then became competitors, often inevitable in the field.

    Mr. Salzburg, note once more that Trans-National Laboratory contamination is not entirely uncommon, or at least by 1980's tech standards. Examining highly active laboratories during this decade + period, samples become crossed.

    Post all the drama, both researchers are civil, acknowledging and respecting one another. Luc and Robert made-up. The test controversy is passé; unfortunately, certain negative voices from the press persist, attempting to trash relations. Begin looking at yourself. The US’s more reliable and today most accurate antibody, confirmatory test, is no longer in question. The doubt and question is that of the dwindling integrity surrounding noble prize politik to be superseded by a US accolade.


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