Biology in the News Explained

A good day for science and medicine

…but will the ruling against Myriad Genetics striking down patents on genes (in this case the breast/ovarian/prostate cancer-linked BRCA genes) be upheld in appeals, especially given the current pro-business makeup of the Supreme Court? Unfortunately it seems unlikely. Patents have been granted for isolated genes now for decades. The original claims were granted on the faulty basis that because isolating genes took such a lot of time and money, those who accomplished the isolation should be allowed to reap the benefits of all that work. It would almost be understandable that this argument carried water 20 years ago, when isolating and sequencing genes did indeed entail huge amounts of work – if, even then, most of that work leading to the sequence had not usually already been done by academic scientists using taxpayer funded grants. But that has always been the case.

The main problem, though, was that the patent office and the courts failed to foresee the advances in technology that made Myriad Genetics’ process for sequencing the BRCA genes essentially trivial. Once the real part of the work, locating the general area of the genome where a gene is located, has been done, the final step involves simply to turn on a whole bunch of sequencers for awhile. It still takes a little bit of money, but since when did we think it’s a good idea to award people patents on stuff they bought?

The unintended (but foreseeable) result of this patent policy has been for biotech companies to sequence genes all over the place and slap patents on them, even if they have no current intention of producing – or even knowledge of how to produce – any sort of useful product with those sequences. Sequencing a gene is just the first step in producing something medically useful, just as conducting a reference search is the first and easiest step in writing a brilliant paper. There are convincing arguments that locking up sequences with patents is actually slowing down scientific innovation, not promoting it. The great majority of those thousands of patents that this ruling calls into question are just sitting there, providing no benefit to anyone. They do, however, present a real obstacle to anyone who would like to take the lead on studying the genes in order to produce a benefit. What we are left with is people and their insurance companies being forced to pay $3000 for a test that any molecular biologist could now do in a day in their lab for less than $100. This, without any way to confirm whether or not their test is valid, since no one is allowed to develop a competing one. Once again I ask, is this really what the free market is all about?

A positive result of the decision, though, even if overwhelming corporate interests cause it ultimately to fail, will be to get this issue out into public discussion. The public needs to know that 20% of their own DNA is now owned by corporations, meaning it is not yours to do with as you wish. This case getting press will be a good start to establishing the constitutionality of current patent law, a discussion that was really never had, but needs to be. Whether this ruling is thrown out or not, eventually it will be understood that even though corporations have now been ruled people, owning another person is still unconstitutional, since the thirteenth amendment was adopted in 1865.

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