In a lawsuit filed yesterday in federal district court (S.D.N.Y.), the American Civil Liberties Union challenged the patents on two human genomes linked to breast and ovarian cancer. The patents give the private company Miriad exclusive rights to perform diagnostic tests on genes BRCA1 and BRCA2 and to prevent any other researcher from even looking at these genes without first getting permission from Miriad. Mutations of these genes are thought to be responsible for most hereditary breast and ovarian cancer.
The suit, filed on behalf of breast cancer and women’s health groups, individual women, and research groups representing about 150,000 scientists, argues that the patents currently held on these genes stymie medical research and stand in the way of a cure for some of the most lethal forms of breast and ovarian cancer. According to the ACLU, granting these kinds of monolithic patents violates the First Amendment by limiting scientific research the free flow of information. If successful the suit will render these patents invalid.
The impact of such an outcome could be staggering. Private companies currently hold patents on about 20% of all human genes. Of those genes patented, many have been linked to diseases such as Alzheimer’s, asthma, muscular dystrophy, and colon cancer. The result of those patents is to place a price, usually thousands of dollars, on access to those genes for research and/or testing. Patients forgo second opinions because the costs associated with genetic testing, and scientists find their efforts to unlock the mysteries of cancer simply too expensive to pursue. Therefore the patent holder, in this case Miriad, is the lead if not sole researcher/developer for medical treatments and developments.
Patents are designed to protect original works of intellectual property, not those things that are naturally occurring, like elements and minerals. Human genes are not invented by these companies, they are identified. Genes lack the essential element of all intellectual property– originality of authorship. By patenting a gene like BRCA1, Miriad claims original source and ownership– that is, without Miriad the gene wouldn’t exist. At a theoretical level such a proposition is offensive regardless of your personal understanding of human creation and evolution.
At the practical level such a proposition is lethal.
photo courtesy of Windfairy via Flickr