… Just last week, geneticists Jeffrey Rosenfeld and Chris Mason wrote a commentary for the Washington Post that warned about the consequences of companies owning the rights to our gene sequences.
Today, in a letter filled with non sequiturs and distortions, Myriad Genetics’ CEO Peter Meldrum, worried about whether his company will be able to maintain their monopoly on a test for which they charge $4000, responded. Let’s look at his claims.
First, though, let me remind readers that the genes in question, BRCA1 and BRCA2, are linked to an increased risk of breast and ovarian cancer, a risk that was first discovered in 1994 by scientists at the University of Utah. Myriad Genetics owns a patent on these genes, and as I wrote last year:
“Thanks to these patents, you can’t look these genes in your own body without paying a fee to Myriad. Sounds ridiculous, right? Well, that was the state of gene patents until last May , when judge Robert Sweet ruled that the Myriad’s patents were invalid.”
Myriad appealed the decision, and the appeals court overturned Judge Sweet, buying into the argument by Myriad’s lawyers that “isolated DNA” is not the same as the natural DNA, and that this distinction allows companies to patent it. This is scientific nonsense for many reasons: for one thing, the process of isolating DNA does not create an artificial molecule. The body’s own cells isolate DNA all the time, in the process of turning it into proteins. But the appeals court accepted the argument, so now the Supreme Court will re-examine this scientifically ridiculous claim. …
… Obviously, a lot of people in the medical community don’t like Myriad’s approach. Lori Andrews, a law professor who wrote a dissenting brief to the Supreme Court for the American Medical Association, told Reuters that “Myriad’s exclusive control has led to the misdiagnosis of patients and has precluded the deployment of improved genetic tests.” It’s not just Myriad any more either. Since those early patents, thousands of more companies have staked out their own claims to piece of the human genome. Genetic researcher Christopher Mason of Weill Cornell Medical College estimates that about 40 percent of the human genome has now been patented and says this sets a really bad precedent. “The overabundance of gene patents is a large and looming threat to personalized medicine,” Mason argues. “Individuals have an innate right to their own genome, or to allow their doctor to look at that genome, just like the lungs or kidneys.”
Myriad and many other pharmaceutical companies disagree. Those in favor of gene patents say that the practice motivates researchers to pursue costly, arduous research with the hope of patenting and profiting from the findings. Those profits are substantial, as well, and sure to continue growing genetics play more of a role in medicine. Myriad, which didn’t even exist before the discovery of the BRCA1 and BRCA2 genes, is now a $2.1 billion company, and the tests they sell to women who want to know if they have the mutation cost $3,340 each. The company’s president told the press that Myriad has “been able to save thousands of patients’ lives” with those tests. They’ve also made millions of dollars. And who knows how many more lives would have been saved if the many labs that were shut down for infringing on Myriad’s patents could have stayed open….
What did the Supreme Court decide? Here it is:
The Court ruled that naturally isolated DNA is not patentable, but that synthetic DNA (such as the cDNA for the BRCA1 and 2 genes) is patentable. The decision was unanimous. From the decision:
A naturally occurring DNA segment is a product of nature and not patent eligible merely becauseit has been isolated, but cDNA is patent eligible because it is not naturally occurring.
…cDNA is not a “product of nature,” so it is patent eligible under §101. cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. Its creation results in an exons-only molecule, which is not naturally occurring. Its order of the exons may be dictated by nature, but the lab technician unquestionably creates something new when introns are removed from a DNA sequence to make cDNA.https://scopeblog.stanford.edu/2013/06/13/supreme-court-rules-on-myriads-gene-patenting-case/First, a brief lay of the legal landscape. Typically, an inventor cannot patent a “product of nature.” But ever since a 1911 appellate decision (.pdf), a natural product can be patented if it’s “isolated and purified” from its surrounding environment. Thus, the chemical compound adrenaline was itself patented because it was isolated and purified from adrenal glands. Shockingly, the Supreme Court has never directly reviewed this isolated and purified doctrine, even after 102 years.… Lower court opinions had made a significant case out of the fact that because the covalent bonds of isolated genomic DNA were cleaved from the surrounding chromosome, an isolated gene was, in fact, a new chemical entity.… five justices – and thus, a majority – believe that patents on isolated DNA are not eligible for patent protection. They don’t seem to buy the argument that simple covalent cleavage renders something a new chemical entity. The Court and lawyers deployed various analogies to make this point: gold from ore, a piece of wood from a tree, a liver from a patient, etc.Read more at ScopeBlog
Obviously, if you can’t own a person, you also can’t own the full or partial blueprints (DNA sequences) to a person. If you can, I will patent the strong nuclear force which holds the nucleus of every atom together. Done. Okay, now you all owe me your lives and I own the Universe. Patents are an absurd legalized manifestation of greed, from one point of view. If something already exists, if you didn’t make it, it is not yours to own. Is “isolating” DNA the same as constructing it? No. As wood from a tree, it isn’t something you made, unless you build a chair from it.
Each person owns his or her genes. Anyone who makes a copy or stores a record of my genetic sequence without my permission is in violation of my intellectual property rights and owes me a fine of $20 million.
That would be my view, as patent holder of the strong nuclear force.