Supreme Court Tackles Gene Patents

A Utah company maintains it has the rights to two cancer genes it isolated.

A robot at Myriad Genetics stirs DNA samples.
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The Supreme Court Monday heard arguments in a case on whether or not human genes ought to be subject to patent. A Utah biotechnology company called Myriad Genetics contests that they can, and that it has the right to two genes linked to breast and ovarian cancers.

The company argues that the work it did to discover and isolate the two genes entitles it to the patent rights. "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,” said president of Myriad Genetics Laboratories Mark Capone. Myriad Genetics' patent on the genes, called BRCA1 and BRCA2, gives it exclusive access to using them for research and treatment.

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The company's lawyer said Myriad is entitled to a patent because isolating the two cancer genes "is the final step in an extraordinarily complicated set of inventive actions that led to the creation of this molecule, which had never been available to the world before." Myriad says the patent and charging $3000 for the genetic test associated with the cancer genes is allowing it to make up the millions it put into making the discovery, and the profit money associated with such work will fuel further scientific innovation. (The actual cost of the test is $200.)

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But the American Civil Liberties Union, who filed the case against Myriad in 2009, said recouping monetary loss isn't reason enough to get a patent. ACLU lawyer Christopher Hansen said:

A patent isn't a reward for effort. A patent is a reward for invention. And Myriad didn't invent anything … The gene exists in the body. All Myriad did is find it.

Opponents of the patent say that Myriad doesn't have the right to patent something occurring in nature that it didn't invent, and that the patent hampers further medical advancement. They cite cases in which patients were denied their own genetic information or weren't given tests requested by doctors because doing so would have been a patent infringement.

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"All Myriad does is take a part of the body out of the body," said Hansen. "It is no different than taking a kidney out of the body. Just because you are the [first] person who takes the kidney out of the body doesn't entitle you to a patent on kidneys."

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