The verdict is in
Two years ago, I wrote an e-Tip called “Who owns your genes?” (6/4/2009). At that time, it looked like the breast cancer game was going to change drastically, thanks to the development of a genetic test for mutations that can cause hereditary breast cancer.
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Women who test positive have an 82 percent higher risk of breast cancer and a 44 percent higher risk of ovarian cancer. Obviously, having this information gives women with these elevated risks a major advantage in conquering the cancer that could take their lives.
But there was a catch–a big one.
In fact, this was a $4,000 catch. That’s how much it could cost to have the test–meaning that, for many women, the information that could save their lives was woefully out of reach.
Why? Because a private company owned a patent on the genes involved in the test–yes, they were claiming ownership over genes in the human body. And to access those genes via the test, they could charge whatever dollar amount they dreamed up.
This wasn’t the first time a private company had put its stamp on something that shouldn’t be patented. In fact, at that time, 20 percent of all human genes were patented and held by private companies. That’s right–you’re walking around with private property–property that, curiously, doesn’t belong to you.
This didn’t sit well with the ACLU, so they filed a lawsuit against Myriad Genetics, the private company that holds the patents for the genes that cause hereditary breast cancer, arguing that the patents were in violation of the First Amendment.
They argued that women concerned about a higher risk of breast and ovarian cancer weren’t able to have anyone but Myriad look at the genes–and that the patents restricted the progress of medicine by restricting scientific research. Researchers outside Myriad couldn’t study these genes without Myriad’s permission.
At first, it looked like we were going to win this one. It was decided that Myriad didn’t have the right to patent the genes. But they appealed. And now the verdict is in.
Unfortunately, it’s not the one we wanted. A federal appeals court decided in a 2-to-1 ruling that Myriad Genetics does in fact have the right to patent the two genes. Meaning that they can keep on charging thousands of dollars for the test. And that private companies really do have the power to impede the free flow of ideas, as pointed out by an attorney with the ACLU. As he says, human DNA “is not a manufactured invention, but a natural entity,” one that should not be subject to patent.
The dissenting judge said that isolating a gene from the human body shouldn’t be enough to get a patent. He compared it to plucking a tree from a leaf–it doesn’t turn that leaf into a human invention.
Makes sense to me. Unfortunately, the winning side doesn’t share these views. Instead, we’re looking at a pretty scary situation. With this new support for the idea that isolated DNA is eligible for patents, where does it stop? Will the biotech industry slowly claim patents over every gene in our bodies? How will this change the face of medical research? With naturally-occurring human genes so closely guarded by a few companies, how will we make any progress?
Unfortunately, I don’t have any answers for this one. All we can do at this point is watch the story unfold–and make our voices heard when we have the opportunity to.
“Court Allows Patents On Breast Cancer Genes,” Pharmalot (www.pharmalot.com)