Where does patent law draw the line?

anika-huizinga-J900cHwdS8k-unsplashI love intellectual property. I study law so reading about the changing legal landscape over generations is of some interest to me. Studying the evolution of rights, from being afforded only to tangible objects, to their extension to include intangible assets, has been inspiring. But every once in a while you hear about the misuse of the system that just makes your blood boil. I was following such an episode. Thankfully, this story has a happy ending but it having to be a story at all bothers me.

Myriad Genetics had patented two genes of the human genome. The fact that they managed to receive such a patent and then receive validation from a Federal court is what bothers me. They had actually managed to secure a patent on the two critical genes responsible for causing breast cancer, namely BRCA1 and BRCA2. You might think I am confusing patenting a test to find the existence of BRCA1 and BRCA2 with actually patenting the genes. I wish I were. But any test conducted to find the two genes without licensing, would have amounted to an infringement of Myriad Genetics patent rights. One would think no one could own our genetic code. We were born with it!

As despicable as Myriad Genetics is, it would still be less reprehensible if the test they provided was the best and most affordable out there. But it was not. Yale invented a better and a cheaper method of testing the presence of the genes in question and yet was unable to carry out testing as it was prevented by law. The patent had been affirmed by the Federal Circuits Appeals Court but was thankfully overruled by a unanimous verdict by the Supreme Court in June this year. If they had not I would have lost all faith in the legal system.  

Breast cancer is the second leading cause of cancer in women. It is estimated that 39,620 women will die of breast cancer this year alone while 232,340 new cases will be diagnosed (www.cancer.org). However, the situation is getting better. Death rates have been declining since 1989. This has been in part due to early detection. Science can help further reduce the amount of deaths if companies like Myriad Genetics stop being greedy. They seem to care about nothing more than making a profit irrespective of the cost; the cost in this instance being human life. Do not get me wrong, I understand that the cost of R&D at a molecular diagnostic company must be a lot, but I believe they can recoup their expenses by patenting their test alone. Patent law certainly recognizes patenting methods and even synthetically created DNA but genes existing naturally should not be allowed to be patented as their creation involves no creativity on the part of the applicant. The purpose of patent law was never to stifle scientific innovation but to encourage it. I am glad that the Supreme court recognized this important principle.

Leave a Reply