Genes should not be patented

Did you know that the U.S. Supreme Court is currently considering a case with wide ramifications, a case involving whether genes—human genes in this case—can be patented? (For longer analyses, see the NPR story here and the New York Times story here).

At issue is the patenting by a Utah Company, Myriad Genetics, of two genes involved in breast cancer, BRCA1 and BRCA2. Mutations of these “tumor-suppressor” genes account for between 10% and 15% of both breast and ovarian cancers, and a woman carrying a mutation in either is about five times more likely to develop breast cancer than a woman lacking those mutations.  Determining whether one carries these mutations, then, is important in how one is monitored for cancer, particularly if a woman has a family history of the disease. To avoid worry, some women with such a history, or who carry the mutant BRCA genes, get prophylactic mastectomies to forestall cancer.

For the past 18 years, the only company that has the right to test for these mutations—indeed, to allow any research on the BRCA1 and BRCA2 genes, has been Myriad, which in effect patented the two genes. It charges $3000 for its test (the test costs the company about $200), and claims that both its patent—and its exorbitant fee—are needed to recoup the costs of discovering that the gene was associated with cancer and developing a way to assay mutations. Myriad claims it spent $500 million to develop the test (I have doubts about that), but they recouped $405 million of that in the last year alone.  As the NYT notes, BRCA testing accounts for 80% of Myriad’s income.

Here’s some background from NPR:

Myriad Genetics, a Utah biotechnology company, discovered and isolated two genes — BRCA 1 and BRCA 2 — that are highly associated with hereditary breast and ovarian cancer. Myriad patented its discovery, giving it a 20-year monopoly over use of the genes for research, diagnostics and treatment. A group of researchers, medical groups and patients sued, challenging the patent as invalid.

There is no way to overstate the importance of this case to the future of science and medicine. In the view of Myriad and its supporters in the biotech and pharmaceutical industries, patents are the keys to making these medical discoveries possible. Their opponents, including leading medical groups and Nobel Prize-winning scientists, contend that Myriad’s patent improperly puts a lock on research and medical diagnostic testing.

The U.S. patent system, authorized in the Constitution, gives temporary economic incentives to inventors to advance science. The general rules of the patent system have been established in statutes and Supreme Court case law for over 150 years. You can’t patent a product of nature or a law of nature. It doesn’t matter that the task was difficult or costly. Nature is immune to patents. So, even though it may have taken Einstein a long time to figure out that E=mc2, he couldn’t have patented that law of nature.

Until relatively recently, much of the medical profession disdained patents, except as a means to ensure quality. When Dr. Jonas Salk, the inventor of the revolutionary polio vaccine, was asked in 1955 whether he had a patent on the vaccine, he replied, “There is no patent … could you patent the sun?”

Myriad Genetics, however, contends that the genes it isolated are not like the sun. Mark Capone, president of Myriad Genetics Laboratories, notes that the 20,000 genes in the human body are part of a 6-foot-long molecule that’s “coiled and compacted and stuffed into each cell.” And, he says, “What Myriad was able to do is sort through all those 20,000 genes and find the two that were highly linked to hereditary breast and ovarian cancer.”

Although Myridad has the right to impede straight research on these genes, they say they haven’t done so, though they still retain a monopoly over diagnostics and treatment. And the Yale case, described below, could be seen as an obstruction of research.

Because of the high cost, some insurance companies won’t cover the testing, and so a woman who worries about familial breast cancer must often pay out of her own pocket—or, if she’s impecunious, not be tested at all.  In that way, and others, Myriad certainly has impeded medical treatment.  In one case, described in the Times, a woman who had breast and ovarian cancer was given the Myriad test and came up clean. But Yale University Medical Center, where she was treated, wanted to look for other mutations in the BRCA genes not covered by the initial Myriad test, for the woman had a daughter. Myriad wouldn’t allow it.  While the insurers haggled over whether to pay for additional testing from Myriad, the daughter developed breast cancer.

Myriad, in other words, owned not only the ability to detect specific mutations in the BRCA genes, but all mutations in the BRCA genes, and wouldn’t let anybody else could look for them.  It owned the gene and everything to do with it.

That’s exploitative, greedy, and unfair.  No company should own a gene, and this is an explicit violation of patent law, which argues that natural substances cannot be patented. The tumor-suppressor genes are natural, and the DNA in patients is exactly the same as the DNA tested by Myriad. It has to be, or the test wouldn’t work. Yes, Myriad discovered that these genes were associated with cancer, and developed a way to assay mutations, but what should be patented is the diagnostic process, not the gene itself. Others can—and have, in the case of cystic fibrosis—developed and patented tests without patenting the gene, so several companies offer diagnosis for that gene.

When Jonas Salk developed the polio vaccine, which was something that could have been patented, he refused to do so, saying that patenting it was like trying to patent the Sun, and that the vaccine belonged to the whole world.  Salk and the University of Pittsburgh could have made millions, but he saw that as unethical.

Well, we no longer live in Salk’s world, and everyone’s trying to get rich from genetic. One could argue that Myriad has jeopardized people’s lives with its unjustifiable patent on a gene itself.

Here, from the New York Times, are those on either side of this issue:

Briefs in support of the plaintiffs were submitted by the American Medical Association, AARP, and various consumer and patient advocacy groups. Supporters of Myriad include drug companies, biotech seed companies and venture capitalists. Diagnostic companies appear split.

The Obama administration, breaking with longstanding policy of the Patent and Trademark Office, says isolated genes should not be patentable. They are medically useful, it says in its brief, “precisely because isolated DNA operates in exactly the same way in a laboratory as it does in its natural environment.”

Genes are products of nature, pure and simple. They should not be patented, and companies, no matter how venal, cannot prevent others from working on these genes or developing their own diagnostic tools should the genes be associated with disease. I can see no justification for a company owning a gene, no matter how much money it takes to determine whether that gene is associated with disease or to develop a test for the relevant mutations.

Yes, by all means let companies develop their own diagnostics, which, if sufficiently novel, can be patented, just as any novel medical test can be patented. But DNA is DNA, whether in a patient or in the sticky hands of greedy biotech companies.  Let’s hope the Supreme Court strikes down this unconscionable process of patenting genes, an issue that will become increasingly pressing as DNA-based medicine goes forward. In the meantime, Congress needs to make laws that clarify the situation.

46 Comments

  1. NoAstronomer
    Posted April 16, 2013 at 5:55 am | Permalink

    This shouldn’t even be a question.

    Mike.

  2. gbjames
    Posted April 16, 2013 at 5:58 am | Permalink

    sub

  3. Posted April 16, 2013 at 5:59 am | Permalink

    I actually don’t think that patents at all serve their intended purpose any more.

    The idea of a patent is that you get exclusive rights to your particular invention for a short while but, in exchange, you have to publish everything somebody else would need to know to duplicate it. You get your exclusivity as a reward for coming up with the idea, but the rest of the world gets your published description in the interim as inspiration for other inventions in exchange. And then the patent expires after you’ve had enough time to make enough of a profit to recoup your initial investment. Once the patent expires, your invention is as generic as a hammer or a saw, and it’s up to the free market to decide who makes the best one.

    What’s happened in practice is that, instead of patents being used to encourage invention, they’re quite disastrously being used pretty much exclusively to discourage invention by all but those with the biggest patent portfolios. The BRCA case is a perfect example, but we see the same problem in every industry. Just look at software patents.

    I’m all for abolition of the patent system. If you want exclusivity for your invention, keep it a secret as much as you can. If somebody else figures out how you did it, tough shit. If said somebody makes your thing even better than you, the inventor, and steals the market away from you, tougher shit.

    People will still invent new stuff. The only difference is that corporations won’t be able to sue little people into oblivion for trying to get in on their turf.

    Sadly, this won’t happen for the same reason that Tea Partiers favor tax cuts for the rich. They’re not rich, but, in their minds, they’re just a year or three from striking it big, and they don’t want to have to pay taxes on the fortunes they’re about to amass….

    Cheers,

    b&

    P.S. We have the same problems with copyrights…. b&

    • Posted April 16, 2013 at 6:09 am | Permalink

      Great analysis and I mostly agree with it.

    • JBlilie
      Posted April 16, 2013 at 7:16 am | Permalink

      Ben:

      I’d like to hear more on how you think that would work out, in the long run.

      Especially on the copyright laws.

      People who create IP (of whatever sort; but especially artwork, books, etc.) expend their most precious resource, the only currency that counts in the end: Their lives’ time, to create this work. If they cannot be assured of at least having some protection (some hope) of making a living from it, why would they do so? Why wouldn’t they just work in a factory?

      Seems to me, if anyone were free to immediately copy any book and reproduce it and sell it with no concern of being stopped, the game would go to the most efficent pirates (gang rule, basically).

      I work in a medical device field (designing product, including coming up with new IP). The people that run these businesses will not invest in R&D if there’s no way to protect that investment.

      I have strong doubts that the fastest pirates will be the ones producing the innovations that are really useful to humanity.

      • Posted April 16, 2013 at 8:48 am | Permalink

        Oh, that’s easy.

        Most artists today already make damned little money from copyright royalties. Corporations — especially megacorps like Disney — make lots of money from copyright royalties.

        But the artists themselves — all the composers and writers and illustrators and musicians and choreographers and painters and the rest? Damned few of them even get enough royalty payments to bother reporting on their taxes.

        Most of those who make a living in their art either get paid salaries or get commissions to create something. Some of them, especially painters and sculptors and others who work in permanent physical media, create first and then sell later — just like anybody else who sells physical goods.

        Get rid of copyright and, within rounding error, the only “persons” who would feel any pain would be corporations.

        And think about it: in what other field is there even a hint of an expectation that you’ll continue to get paid for your one-time work effort for the rest of your life, and that your great-grandchildren will get paid as well? Who is still making regular payments to Henry Ford’s children for the privilege of driving a Model A?

        And, yet, Boosey & Hawkes will charge even a community college orchestra several hundred dollars for the privilege of performing Ravel’s Bolero, which premiered about the same time as the introduction of the Model A. And Ravel has been dead for over 75 years.

        If you want to make a living as an artist, do it the same way almost every other artist does: get a job doing your art; hustle up commissions; sell physical goods (many bands make far more on T-shirts than they do CDs); charge for admission to performances; or even do the NPR / kickstarter model and have a public beg-a-thon asking for donations to keep you from having to get a job flipping burgers. And you can always have a day job and spend your free time creating art rather than watching TV.

        But copyright? That’s nothing but a tool for corporations to control people and beat them into submission.

        Cheers,

        b&

        • JBlilie
          Posted April 16, 2013 at 10:51 am | Permalink

          I get your points — sort of.

          I’m having a hard time seeing that scenario as an improvement.

          It’s a slim chance, regardless, as an artist: No guarantee that anyone will ever want what you make (enough to slap down their money for it). Most opt for one of the two main options you mentioned: Salaried work or free time work.

          If everyone did that, would that be an improvement?

          Two of my cousins are FT professional musicians. I’ll ask them what they think. I know that one supports his family to a significant degree on his publishing royalties.

          I don’t see book publishers as bad guys. The vast majority of writers would have a really hard time making a living in self-publishing. Most of my closest friends are self-employed (and I have a vigorous and time-consuming second job – self-employed – creating tools for artists*) and, universally, the most difficult and time consuming part of that kind of gig is marketing. We would all love to be able to spend our time making things rather than flogging them.

          We may be moving into a “brave new world” where everything is swapped/shared on the internet. I’m having a hard time seeing how that is going to be an improvement, or will enable more or better art to thrive, or will add to anyone’s bottom line except the large corporations who build, maintain, and control the internet.

          (*None of this directly affects me in this work. My work is not patentable or copywrite-able or trademark-able. And anyone is free to try and copy what I do. Try. I even freely share some of the basic ideas involved.)

          • Posted April 16, 2013 at 5:19 pm | Permalink

            I’m having a hard time seeing how that is going to be an improvement, or will enable more or better art to thrive, or will add to anyone’s bottom line except the large corporations who build, maintain, and control the internet.

            Well, now, you’re pointing to a rather large elephant in the room.

            These types of discussions can’t be had without observing the deadly combination of historical and recent productivity gains resulting in both rising unemployment and increasing concentration of wealth in a few individuals at the top of the heap.

            There are about 1,200 billionaires in the world today. Median household income in the US is at right about $50,000. Each one of those individual billionaires has enough assets to pay for twenty thousand household-years of income and still have far more savings in the bank than most Americans will ever have. Those 1,200 people wouldn’t even fill a small recital hall, and yet they’ve got enough money to pay all the living expenses for basically everybody in the ten or so largest US cities for an entire year.

            And that’s just their personal bank accounts (and stock portfolios and what-not)! That number doesn’t even touch on all the yachts, mansions, and other forms of property and various other capital assets.

            I’m all for people striking it rich. But no one single person is worth a hundred thousand other people, a million other people, more in some cases. Especially not when their wealth comes entirely from the fruits of the labors of hundreds of thousands of others with the support and infrastructure of the entire society.

            If, as originally promised, the profits from the productivity gains we’ve experienced had been distributed to the workforce as a whole, we’d all have 20-hour work weeks, we’d have no meaningful unemployment — and, yes, we wouldn’t have so many (if any) billionaires. But we’d have a whole hell of a lot more millionaires; indeed, a significant portion of the people reading these words would be millionaires.

            And, in such a society, I don’t think there’d be any shortage of people happy to create art without worrying a whole lot about how to get paid for it.

            Cheers,

            b&

      • Jeff Johnson
        Posted April 16, 2013 at 11:50 am | Permalink

        Another horrible aspect of the patent system is that patents are transferrable, so the people who actually have the brains and knowledge and do the hard creative work aren’t usually the ones who benefit the most financially from the patents. Their employers do. Scientists and engineers who work for private corporations sign away their rights to ownership of any of their work. They do the work for a salary.

        This is what is so terrible about private industry funding essential scientific research. It ends up in the long run being effectively a tax on all citizens in order to pay the overhead of corporate profit, whether its in software or medicine or other technologies. Better to pay the tax up front to fund the research so that the fruits are available to end users at close to actual costs rather than at prices inflated by the greed of exorbitant profit.

        The scientists would be just as happy working for a government funded research lab that was funded for the benefit of humanity, with no wish to tax and penalize end users for the sake of profit. This is why we should be pouring government finance into research, especially in the energy sector. It is an investment that pays off for everyone in the long run.

        Leave the fat assed executives who don’t actually know anything about science out of the equation. Let the skilled, creative, and knowledgable people have the resources they need to create value for humanity.

    • Gregory Kusnick
      Posted April 16, 2013 at 11:04 am | Permalink

      If you want exclusivity for your invention, keep it a secret as much as you can.

      How you do keep a consumer device secret and still make a profit from it? The whole point is to put it in as many hands as possible. That necessarily includes the hands of your competitors, who will happily reverse-engineer it and sell exact copies of it if there are no legal protections against doing so. And they’ll be able to sell it cheaper, since their R&D costs will be lower than yours.

      • Posted April 16, 2013 at 5:32 pm | Permalink

        How you do keep a consumer device secret and still make a profit from it?

        Easy. Make it better / cheaper / more stylish / whatever than anybody else.

        I mean, you do know that there’s neither patents nor secrets on hammers, teapots, chairs, and all sorts of other consumer goods, and yet huge profits are regularly made from their manufacture and sale?

        The hard part isn’t coming up with the new idea. People come up with new all ideas all the time. It’s what we do.

        The hard part comes mostly from the resource extraction and the tooling and the supply chain and the marketing. The idea is rather irrelevant in the big scheme of things.

        Coca-Cola could email their “secret” formula to everybody on the planet. Aside from the novelty factor, it wouldn’t change a single thing. Nobody is going to bother making their own Coke at home. Pepsi isn’t going to start making Coke, even though they could already today if they were so inclined. People who want sweetened carbonated beverages already have all sorts of alternatives, and yet they still drink Coke by the swimming pool full.

        Same thing in every other industry. What keeps you from making your own car isn’t Ford’s patents on whatever their latest engine technology is. It’s the billions you’d have to spend to build an assembly line. And so on.

        Cheers,

        b&

    • eric
      Posted April 16, 2013 at 12:38 pm | Permalink

      In general I agree that it’s middlemen corporations – essentially, rent-seekers – that make the most from patents, not the authors/authors/inventors, etc. I recall talking to a sci-fi author who said he made about 5 cents per $6 book – less than 1% of the sale value was making it to him.

      However, I think a happy medium could be found with a relatively low(er) patent period. Say, 10 years instead of the 70 or so it is now.

      As for the gene patenting, I can’t see any legitimate reason why the courts ever allowed that – only political reasons. By all means let Myraid patent their specific test technology and methodology. But letting them control access to the gene itself or other types of tests on that gene is sort of like the inventor of the straw saying nobody can drink from a cup without paying him. Sure I can – as long as I don’t use your straw to do it.

      • Posted April 16, 2013 at 5:44 pm | Permalink

        You’re confusing your patents with your copyrights, and even then you’re a bit behind the times.

        Patents are 20 years from the date of filing, though there’re circumstances that can reset the clock if there’re delays in the granting process.

        A copyright, on the other hand, doesn’t expire until 70 years after the death of the author.

        And you can reliably expect that everything from 1928 on will always remain in copyright, because the then-sitting Senators from Disney will, like clockwork, be sure to protect Steamboat Willie (and thus Mickey Mouse) from ever entering the Public Domain. I mean, we can’t have that, now, can we?

        Once upon a time I might maybe have been sympathetic to the concept of returning copyright limits to more traditional values. But it’s pretty clear that the basic idea is fundamentally, horridly broken, and that corporations will inevitably and instantly pervert any reforms into exactly the same fucked-up mess we have today.

        There’s no more baby left (alive) in that bathwater, if there ever was one in there in the first place. So let’s just pull the plug and be done with this noxious, toxic mess.

        Cheers,

        b&

    • madscientist
      Posted April 16, 2013 at 2:42 pm | Permalink

      It’s far worse than that. Patents work well for a number of things – for example a car engine. If you want to build your own engine that’s fine but you can’t use someone else’s physical design – you have to make your own. So competitors incur a significant development cost and don’t really get much for free. In the case of genes, (1) they were not designed, (2) it’s not necessarily possible to design something with similar function, and (3) why are people even claiming you can’t do research on genes? In the manufacturing world reverse engineering remains legal through most of the world because patents were never intended to protect the function of a device, only the physical manifestation. I never understood why the USPTO ever granted patents on something that wasn’t even invented. The so-called “process patents” are another huge joke – no, you can’t create a website with a “click here to purchase an item” button because I have a patent for that.

  4. TJR
    Posted April 16, 2013 at 6:02 am | Permalink

    If they patent the gene, shouldn’t this make them legally responsible for the cancer?

    • Posted April 16, 2013 at 6:07 am | Permalink

      Yes. If they want the profits, they should also accept the losses. Otherwise they should shut up.

    • NoAstronomer
      Posted April 16, 2013 at 7:26 am | Permalink

      Nice one. Portia would have been proud.

  5. lamacher
    Posted April 16, 2013 at 6:39 am | Permalink

    Nostalgia time again! I recall a time, four/five decades ago, when such a thing would have been considered an abomination in my old profession. We were taught that any new process, discovery, or instrument that came out was to be made available to the entire profession without restriction, and freely, for the good of all. That, of course, was before the notion of ‘investing in health care,’ infested everything. How could we have been so naive (snark)? Patenting genes is the same as patenting life – but no doubt some corporation has already thought of that.

    • madscientist
      Posted April 16, 2013 at 2:50 pm | Permalink

      There have always been a “mine, mine, mine!” and “everyone should have access to it” attitudes in research, whether in the USA or Europe. We have a peculiar situation in the USA with the history of government funded research in the post world war 2 era; at some point most scientists and the US Congress believed that all research funded by the government should be free for all. In the case of data from the earliest earth observation satellites we even extended that to foreigners (in part because controlling the data could not be enforced while making public access to any US citizen reasonable to implement). If you look at ESA, they simply don’t share data with non-EU groups (this has changed a bit in the past 10 years, but data is still not as accessible as with NOAA satellites). So the battle goes on between scientists who want to share discoveries and the greedy ones who believe the world owes them something.

  6. David Duncan
    Posted April 16, 2013 at 6:42 am | Permalink

    I think patent and copyright law needs reform. I’m not sure if I agree with abolishing it all together, but patents and copyright should be cut to at most five years.

    In this case patenting something that nature built is ridiculous. This kind of situation is just made for governments to fund research and place the results in the public domain.

    I know a woman in this exact situation. Her mother died of breast cancer, and the woman has one of the mutations, but no cancer yet. She’s taking the surgical option. What a horrible dilemma.

    • Thanny
      Posted April 16, 2013 at 11:28 am | Permalink

      Copyright definitely needs to shrink in time, but five years is ridiculously short. Something more like 25 years is appropriate.

      The time for patents is appropriate, but the USPTO grants patents that it shouldn’t, including these gene patents. Forget nature – the existence of these genes in people born before the patent is prior art.

      What needs to be done is to stop the office from granting patents for obvious and fundamentally unpatentable things. Like http://www.google.com/patents/US6004596 or http://www.google.com/patents/US6368227.

      Most of the patents that Apple successfully sued Samsung on, for example, are complete garbage.

      • David Duncan
        Posted April 16, 2013 at 6:19 pm | Permalink

        I agree about the Apple patents, and don’t have a firm view of how long patents and copyright should last. What I do believe is that they need to be much shorter than at present. At various times I’ve suggested 10 or 20 years at the most, and others have suggested no patents or copyright at all. I’m pretty sceptical of that but I very much object to copyright being extended out to 70 years or more.

        • Posted April 16, 2013 at 7:16 pm | Permalink

          Would that it were only 70 years!

          It’s as long as the author lives, however long that may be, and then another 70 years after that.

          Just think about that for a minute, let it sink in.

          Let’s say you’re 20 and you write something about the birth of your first child.

          And let’s say your child has a child at 20, making you a grandparent at 40, and that your family keeps that tradition going, with the firstborn coming every 20 years.

          And let’s say you live to a ripe old age of 100.

          Your great-great-great-great-great-great-grandchildren will be collecting royalties on the copyright on that book that you wrote when you were 20 before the copyright expires, a century and a half after you set pen to paper.

          If that doesn’t constitute carnal relations with Mickey’s dog — that is, fucking Goofy — then I don’t know what does.

          Cheers,

          b&

  7. JBlilie
    Posted April 16, 2013 at 7:02 am | Permalink

    This case seems pretty simple (although I haven’t read the actual text of the patent law): DNA sequences are a product of nature. Myriad neither invented (or discovered) DNA nor did they invent or create the DNA sequences named. They figured out some effects of those genes (products of nature) on human bodies (products of nature).

    It seems really clear that a DNA sequence, being strictly a product of nature, full stop, cannot be patented.

    Sure, patent your method of duplicating the DNA sequence, your method of testing for the genes, your method of using a retro-virus to deliver gene therapy, or your method to discern DNA sequences (if they are novel enough); but not the product of nature: DNA sequences themselves.

    The picture is a little muddy since Agri-tech has been patenting plants that they “discovered” in other parts of the world (being happily cultivated and/or exploited by the local indigenous people). I guess discovered only means: Discovered by weathly folk from the “developed” world.

    • Gregory Kusnick
      Posted April 16, 2013 at 11:15 am | Permalink

      DNA sequences are a product of nature.

      Naturally occurring DNA sequences are a product of nature, and sbould not be patentable for that reason.

      But we’re entering an era in which it will be possible to design DNA-based devices from the ground up for particular functions, and I don’t see why such artificial DNA sequences shouldn’t be subject to the same legal protection as any other invention.

  8. Dominic
    Posted April 16, 2013 at 7:24 am | Permalink

    One worders if they would consider suing people for reproducing the gene – by having a child…

    • lkr
      Posted April 16, 2013 at 7:43 am | Permalink

      There’s precedent in the cases involving patented rapeseed — though those are recombinants not occurring in nature.

  9. Sunny
    Posted April 16, 2013 at 7:46 am | Permalink

    Remarkable all the myriad ways greed operates.

  10. Ken Pidcock
    Posted April 16, 2013 at 8:49 am | Permalink

    This is a good lesson in legal contingency. (That’s not the right word, but I couldn’t think of it!) Thirty years ago, there were more people making the case for patent protection being required as incentive for the effort required to reveal such mutations. (For Huntington Disease, it took eleven years of effort from multiple laboratories in open collaboration to get from chromosome arm to locus.) Today it doesn’t look that way, so the idea of patenting genes seems ridiculous.

  11. TJR
    Posted April 16, 2013 at 9:14 am | Permalink

    All reminds me of an episode of The Goons (50s UK radio comedy) where Grytpype-Thynne (Peter Sellers) copyrights the word “Help” and charges drowning people for its use.

  12. Xray
    Posted April 16, 2013 at 9:36 am | Permalink

    From news reports of the arguments before the Supreme Court, it appears that several justices are clearly going to rule in Myriad’s favor. Scalia, in particular, seemed dismissive of the other side. If the SC does indeed uphold Myriad’s patent, it is yet more evidence that at least 5 or these justices are nothing but corporate hacks.

    • JBlilie
      Posted April 16, 2013 at 11:05 am | Permalink

      NPR reported yesterday that several of the justices appear very skeptical of Myriad’s claims.

  13. Posted April 16, 2013 at 9:54 am | Permalink

    People do deserve to earn from their hard work, but that earning should be limited. Patents on things that save lives limits their distribution and harms society. Hey, if it cost 500mil investment, then at the 2/3 year mark they should have to make this public domain. What these people deserve is for someone to find a better way to do this and to make it at 100th of the cost. Their patent will be no good then.

    • JBlilie
      Posted April 16, 2013 at 11:25 am | Permalink

      I agree that, in this case, the patents should not be upheld: Genes are a product of nature. This question is clear, IMO.

      Many life-saving and life-enhancing medical products/procedures have cost huge amounts of money and long periods of time (and talented people’s careers) to develop. If the developers are not compensated, who will invest their lives and fortunes in something guaranteed not to pay them back?

      Who gets to decide what is just compensation? And who decides what compensation is adequate to stimulate similar investments in money, time, and lives to poduce the next breakthrough?

      No one should think this is simple or obvious.

      I think we should have (in the US) universal, single-payer health care (on the Canadian model, IMO). I’m disappointed that Obama care fell short of that. And: If that single payer wants healthcare improvements, the people that develop them will have to be compensated for them.

      • Posted April 16, 2013 at 11:39 am | Permalink

        Many academic researchers find associations between genes and diseases without huge R&D costs; that was done for cystic fibrosis and could have been done for the breast=cancer genes. Remember that only two things are required: a. find an association between a known genic variant and a disease; b. determine the sequence of the mutations that cause the disease.

        That doesn’t take tons of money and was, in fact, done for cystic fibrosis without any need for a patent to compensate people.

        This is NOT like developing and testing a drug, which does take lots of money. This is simple population genetics and DNA sequencing.

        And plenty of research scientists do exactly these things, in the field of health, with just their salary and federal grants. They don’t need millions of dollars in their pockets.

        Plus, as with Jonas Salk, charitable organizations (the March of Dimes in his case, I think) are often willing to fund research on problems like this.

        Frankly, I’m tired of hearing how companies need millions of dollars to compensate them for development. When they get that, then they often engage in questionable practices to keep the money flowing in, like paying companies NOT to make generic drugs when their patents expire.

        • tabularasa
          Posted April 16, 2013 at 1:36 pm | Permalink

          It is my understanding that the Cystic Fibrosis gene (CFTR) IS patented (see http://www.google.com/patents/US6984487). Thus, if the CF example is a good one, it is not necessarily the patenting/non-patenting of genes that is the problem. It is the patent holders. Note, the main CF patent holder is Canadian, Lap-Chee Tsui.

          I realize that this may be a “patents don’t kill people, patent holders do” argument.

          The gene patenting argument is not as simple as DNA is a product of nature and thus isn’t patentable. By extension, this would apply to almost all drug, material, and chemical discovery, too.

        • Posted April 16, 2013 at 3:37 pm | Permalink

          THIS, exactly. It angers me to no end that a company can charge a fee of $3,250 for a procedure that I could essentially do in my lab tomorrow for $20.

  14. Posted April 16, 2013 at 4:37 pm | Permalink

    A bit late to the party here, but I want to say I fully agree with this article. I’m an inventor with numerous patents for technology relating to radio receivers, speech and handwriting recognition, cryptography, digital signatures, and audio signal reconstruction. And in my opinion, it’s ridiculous to think that isolating some bits of DNA that evolved naturally over many millions of years entitles one to claim any sort of exclusivity for that DNA, no matter the legal wording that is attempted for justifying it.

  15. Posted April 17, 2013 at 4:07 am | Permalink

    It seems to me that the existing framework of patent law provides a viable route to killing Myriad’s patent, and, indeed, any other attempt to patent a naturally-occurring gene: Find a critter which both (a) bears the patented gene, and (b) was born before the date on which the patent was issued. This critter will be Prior Art, as far as the patent in question is concerned, and therefore should constitute valid grounds for voiding the patent in question.

  16. Posted April 17, 2013 at 4:20 am | Permalink

    Round-up Ready crops.

  17. aljones909
    Posted April 17, 2013 at 8:30 am | Permalink

    Surely it only needs the rest of the world to ignore ridiculous US bio patents. How long would it last if americans had to pay $200 dollars for a test and everybody else was paying $5.

  18. Posted April 17, 2013 at 4:50 pm | Permalink

    Reblogged this on Sarvodaya.

  19. guilherme21msa
    Posted April 19, 2013 at 6:21 am | Permalink

    Am I the only person here who’s read “Next”, by Michael Crichton?

    The guy wrote an entire novel just to give us the message “Genes shold not be patented”!

    That’s quite a feat, I say. Crichton warned us of several crises in modern politics involving science. He had quite a lot of foresight.

  20. Posted April 19, 2013 at 3:36 pm | Permalink

    Absolutely absolutely !!!!!

    Patricia A. McKnight

    mailto:athenasowlet@msn.com

    “The greatest problem in communication is the illusion that it has been accomplished.” GBS


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