I have been perturbed for quite some time about the process of patenting genes – and there are tens of thousands of such patents. The movie The Corporation introduced the topic – and the US Supreme Court’s decision that anything short of a full-birth human being could be patented.
Modified genes. Some of these patents are related to genes which have been modified – engineered – for a specific purpose. Once patented, however, the genes – wherever they are found – need to be licensed by the patent holder. Any number of farmers tell horror stories of having their entire crop of corn seized, and even being sued until they have to declare bankruptcy, because pollen from their neighbors genetically engineered (pesticide-ready) corn crop had floated on the air into their field. We don’t mention that many of these genetic modifications also have a terminator gene so the corn that bears the modified gene can’t be sown as corn.
Human genes. More recently, I became aware of patents on human genes – not modified, just mapped and their purpose uncovered. An NPR story highlighted the high cost of tests for BRCA1 and BRCA2 genes – which indicate a higher likelihood of a certain type of breast cancer. Even worse than the nearly $4000 cost of the test was the company’s unwillingness to license any other lab to give a second opinion about the presence of the genes. These genes, unlike those in genetically engineered organisms, were discovered – mapped – often with research paid for through NIH and other government agencies.
The BRCA1 and BRCA2 genes were patented not only in patient tests, but also in scientific research. By patenting the genes, the Myriad Genetics corporation could decide who could conduct research about these genes, and how much it would cost them to do so. While patents were designed to enhance science, these served to hold it back.
Court decision: Genes were discovered, not invented. A decision in Federal District Court for the Southern District of New York, Judge Robert Sweet said that the patents should never have been issued. The genes were “discovered” not invented, and the use of the genetic material in a test does not make the test patentable.
The case will, of course, be appealed. But this is the first crack in the wall which has locked out women with Medicaid coverage – Myriad would not accept their payment – and limited research on these genes. And it is, perhaps, a crack in the overall corporatization of the basic building blocks of life.
May it be so.
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