Friday Rant: Usurping Patents & Paying for the Common Good in a Capitalist Economy

According to the New York Times, "A federal judge on Monday struck down patents on two genes linked to breast and ovarian cancer. The decision, if upheld, could throw into doubt the patents covering thousands of human genes and reshape the law of intellectual property." The WSJ writes "The ruling by U.S. District Judge Robert Sweet invalidated seven patents covering the BRCA1 and 2 genes linked to hereditary forms of cancer that were licensed exclusively to Myriad Genetics Inc., Salt Lake City, by the University of Utah Research Foundation." While the decision is new, the issues surrounding this specific case have been debated for over a decade.

An editorial in Nature titled Gene Patents and the Public Good, dating back to May, 2003, states "a growing concern among biomedical researchers that broad patents on genetic sequences may, in some cases, have a stifling effect on research and negative consequences for public health. Take the struggle over predictive testing for breast cancer based on the BRCA1 and BRCA2 genes. Since the Utah-based company Myriad Genomics won a European patent on the genes in 2001, the Curie Institute in Paris, with the backing of the French government, has been fighting for the right to continue testing women for the genes, which it can do for about a third of what Myriad charges."

The judge's current "ruling adds legal weight to the argument by some geneticists and others that companies and institutions shouldn't be allowed to patent basic genetic information that makes people human" writes the The WSJ. But since "Federal law does allow genes to be patented if they are isolated from the body, purified and turned into something useful," as The Journal also states, then it would appear that "Myriad['s] test costing more than $3,000 that looks for mutations in the two genes to determine if a woman is at a high risk of getting breast cancer and ovarian cancer," according to The Times, is also perfectly legal by current statute.

It's abundantly clear that Myriad has been diligent in their research and development for a very long time. Presumably in the interest of breaking new scientific ground, recovering their investment and even making a profit, Myriad must now wage a long and inevitably protracted legal battle to have their original patents upheld, or not. While all this is going on, subsequent research based on their discoveries by others will also impeded. So what's going on here, and what can be done to prevent this waste of vital information and dollars going forward?

The patents were granted and now they've been rescinded, pending an appeal that will inevitably come before the Supreme Court. Other for-profit laboratories and researchers now say that "getting approval from holders of exclusive gene patents makes developing multi-gene diagnostic tests especially difficult. [and] Modern gene-sequencers and other machines have made the task of identifying genes -- and even figuring out their function -- much easier than before," according to The Journal. This scenario has been evolving for more than a decade and there's no way that the entire scientific research community, public and private, didn't see it coming. Pioneers like Myriad need to be more proactive and compassionate about structuring their long-term ROI and work with the research community at large rather than holding their cards tight and letting the courts decide the outcome.

This is an age of extraordinary scientific and technological advancement facilitated by the exchange of knowledge and discovery. That exchange, in a capitalist economy, is not free. But it must be reasonable and efficient. The for-profit research community, by not accepting this reality, along with responsibility for the public good, will ultimately jeopardize their own survival. No one wins when our courts are forced to decide the morality of the marketplace.

William Busch

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