US Supreme Court To Decide Whether Or Not Genes Can Be Patented

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Should genes be patented or not? That’s the question currently facing the Supreme Court. Coming up with an answer that’s satisfactory to the researchers, doctors and patients who have a stake in the case is turning out to be as knotty as the genome itself. The decision reached will have a profound impact on how medical research is performed and how medical care is delivered.

Central to the discussions, which began April 15, are patents held by Myriad Genetics. The Utah-based biotechnology company discovered two genes, BRCA1 and BRCA2, that, when mutated are associated with higher risk for breast and ovarian cancer. After isolating the genes, Myriad patented them. As patents take 20 years to expire, the company has the sole rights to use the genes in breast cancer research, diagnosis and treatment.

A group of scientists and doctors are are now suing Myriad, arguing that the patents are invalid, that they hinder the ability to conduct research and treat patients. For their part, Myriad makes the case that, without the ability to patent the genes, incentives to study the genes and invest the enormous amounts of capital to develop breast cancer tests and treatment would be gone. Researchers say gene patents halt progress, Myriad says they’re vital to it.

Even more insidious to patients and physicians is Myriad’s BART test. The company’s original tests for BRCA1 and 2 tests missed about 10 percent of cancer-related mutations on the genes. So they devised a new method, the BART test, to pick up the other 10 percent – and charged another $650 to $700 to use it.

Those opposed to the patents often tell the story of Kathleen Maxian whose sister was tested with the original BRCA1 and 2 tests. The results were negative, leading the women in the family to think they weren’t at high risk for breast and ovarian cancers. When Maxian was diagnosed with ovarian cancer two years later, her sister was tested again by Myriad, this time with BART. The second test showed her to to have a very strong genetic risk of developing breast cancer and ovarian cancer. For whatever reason, the sister hadn’t known about BART. Aside from the extra money, many patients are outraged that Myriad doesn’t do the job all at once.

While BRCA1 and 2 are stretches of DNA that occur in nature, Myriad Genetics argues that their isolation make them inventions. [Source: Wikipedia]

While BRCA1 and 2 are stretches of DNA that occur in nature, Myriad Genetics argues that their isolation make them inventions. [Source: Wikipedia]

Patents are issued for inventions. But if that’s the case, how can a gene be patented? Genes are part of our DNA, they’re in our bodies and in our cells. They’re part of nature. How, then, can they possibly be patented? We may as well patent gravity.

The question that the justices are struggling to answer in the case, Association for Molecular Pathology v. Myriad Genetics, is whether or not genes are “products of nature” that cannot be patented or “human-made inventions” that can be.

Christopher A. Hansen, a lawyer for the American Civil Liberties Union, asked at the hearing, “...what exactly did Myriad invent? And the answer is nothing.” For Myriad’s lawyer, Gregory Castanias, it’s not as simple as that. He argues that genes are in fact not products of nature, saying “There was invention in the decision of where to begin the gene and where to end the gene.” To further support his position he offers an analogy, saying that a baseball bat can be patented even though it is essentially a part taken out of a tree.

In an attempt to pin down what are products of nature and what are inventions, Justice Samuel Alito proposes another analogy. “Suppose there is a leaves of a plant that grows in the Amazon, and it’s discovered that this has tremendous medicinal purposes. Let’s say it – it treats breast cancer.” And he asked if the leaves were patentable. To this, Hansen answered no they weren’t, if the leaves were eaten without being altered. But if the cancer-treating substance in the leaves were altered in a way to give it “a new function,” he argued, then it could be patented.

Justice Alito then questioned how the hypothetical substance in the leaves was different from isolated DNA, saying isolated DNA has a “very different function from the DNA that exists in nature.” Hansen did not agree.

Justices Elena Kagan and Antonin Scalia later turned the discussion to the consequences of preventing gene patenting, asking if we should be worried that companies might stop investing the time and money into developing tests and treatments. Hansen’s answer, “I think scientists look for things for a whole variety of reasons, sometimes because they’re curious about the world,” was not satisfactory to Justice Kennedy. “I just don’t think we can decide the case on the ground, oh, don’t worry about investment, it’ll come.”

The US isn’t the only country trying to find their way out of this messy litigation thicket. Australia’s Full Federal Court began hearings the same week to consider the validity of Myriad’s tests.

As with other products that companies sell, Myriad can put whatever price they want on their breast cancer tests. The question of what is nature and what is invention is a philosophical question with huge practical implications. The Supreme Court is expected to continue deliberating on the case until it delivers a decision June 30. When it does, researchers, doctors and patients will be listening closely.

[image: Wikipedia]

Peter Murray

Peter Murray was born in Boston in 1973. He earned a PhD in neuroscience at the University of Maryland, Baltimore studying gene expression in the neocortex. Following his dissertation work he spent three years as a post-doctoral fellow at the same university studying brain mechanisms of pain and motor control. He completed a collection of short stories in 2010 and has been writing for Singularity Hub since March 2011.

Discussion — 6 Responses

  • Zapece April 22, 2013 on 9:14 am

    I think its fairly obvious that existing genes should not be able to be patented.

    The baseball bat example is highly flawed as the baseball bat required a significant degree of modification until it does not even resemble its origin.

    If they are inventing new genes with new bases and sequences that have never existed in nature that lead to proteins with superior properties such as a new form of hemoglobin that binds 50 times the oxygen and allows you to hold your breath for 30 minutes
    then I would agree that deserves a patent, but any gene that currently exists within a human functional or non functional should be off limits.

    In short anything that is patentable should be unusualy novel and not currently exist in nature, otherwise they should patent the process rather than the genes.

    If they grant this I’m going to patent atoms and all the base pairs plus chromosomal structures and I will own all of you muhahahaha

    • Dirk Maes Zapece April 22, 2013 on 1:22 pm

      1) Existing genes tend change naturally; this natural process can be manipulated by selection and accelerated. Are these new genes “invented” in the laboratory? Off course not, only the technique is a human invention.

      2) Inventing new genes can in theory only be done with the help of computer simulations, based on existing genes. To invent new life from scratch would be a daunting task of unimaginable complexity; not something a corporation ever would do. Once again, it’s the same technique as 1; with the only difference that the process of artificial evolution is virtual. So, the product was not invented; just the means to develop the product.

      This reveals an underlying problem with the current patent system. It is slowly becoming obsolete. Same reason why you can’t copyright memes; even when it’s your idea, you are not the one who “developed” the meme. They are developed and naturally selected by the hive-mind of the internet.

  • DylanWeinberger April 22, 2013 on 9:23 am

    So can I patent coal because I isolated it from the earth?

  • Greendogo April 22, 2013 on 11:00 pm

    As I don’t believe IP has any basis in reality and is a completely immoral system, I’m against gene patents.

    However, if they’re going to patent anything, I’d say they should patent biological systems starting at the intracellular level. Things like improvements to organelles. Genes, no, organelles and above, yes. And also nothing already found in nature.

    It’s too bad we don’t live in a world without the insane belief in both private property AND the conflicting idea of Intellectual property. Private property is necessary for a civilization to flourish. Intellectual property is a detriment to it.

  • David F April 24, 2013 on 5:52 am

    Something must have been left out of this article. It is hard to imagine the Supreme Court dithering over this. As Link says, the test is clearly patentable, while the gene is not. This is always the case with patents. To take the example from the article, if you wanted to develop an anti-gravity machine, you would first have to identify a property of gravity that has escaped all others’ notice thus far. Identifying such a property would be time-consuming and hugely expensive in both human and materiel costs. Should you succeed, of course, you can patent your machine, and I imagine the market would reward you for it, at least initially. However, things being as they are – and this is the reason patenting was invented – as soon as you make the details of your invention open to all, there is a risk that the details of your solution may inadvertently reveal the property of the problem that makes it possible, and you may well find, as so many others have, that you have a patent on only one of the possible solutions to the problem you have identified, thus making all your initial R&D costs irrecoverable.

    That risk is what Myriad Genetics is trying to obviate. It is the equivalent of trying to patent gravity in order to secure the patent on anti-gravity. Nonetheless, the rule remains: you can only patent the solution, not the problem, while the vast majority of R&D cost and effort is into the problem, not the solution. This may explain the dearth of anti-gravity machines on the market. Nonetheless, this is a very common problem. If you are dying of a rare disease, you can be sure no one has any commercial interest in trying to save you. That is the sole prerogative of governments, universities and charities.