On May 12, 2009, the American Civil Liberties Union and the Public Patent Foundation filed a lawsuit against Myriad and the U.S. Patent Trademark Office challenging claims on Myriad’s patents on two human genes (BRCA1 and BRCA2). The ACLU and PUBPAT, representing 150,000 geneticists, pathologists, and laboratory professionals, argue that these patents are both unconstitutional and invalid.
On April 15, after years of appeals, the Supreme Court will hear arguments from both sides and likely decide whether or not genes can be patented.
While gene patenting may seem to be a new development, the first gene patent was filed in 1972 by a scientist named Ananda Chakrabarty who was working for General Electric. Chakrabarty had developed a bacterium for digesting crude oil in oil spills and thought that she could thereby patent its DNA. The U.S. Patent and Trademark Office denied her patent, but the Supreme Court later ruled that the gene was patentable because the organism whose gene was patented was "man-made."
Since this landmark 1981 ruling, 20% of human genes have been patented. This begs one to ask "why should companies be allowed to patent human genes?"
Myriad argues that they should be allowed to patent the gene because they were the first ones to remove it from the rest of the human genome. These removed or "isolated" genes give the patent-holder exclusive rights to all clinical testing and research on the genes. As a result, Myriad has forced a monopoly on gene research for BRCA1 and BRCA2.
This patent (and subsequent monopoly) is dangerous as it prohibits research on these genes by other companies and laboratories. And since these genes have been connected to hereditary breast cancer, it is now less likely that a gene-based cure will be found.
If a cure is found by Myriad, they will also be able to patent it, which will allow Myriad to increase the price of the treatment and reap excessive profits. And when the price of a good is high, less people can afford it, meaning that more people will eventually die of breast cancer.
But isn't this why our government outlaws monopolies in the first place? It seems hypocritical that the government also gives temporary monopolies to companies or people who request them through patent law.
The reasoning behind these patents is, as the ACLU admits, companies like Myriad make important contributions to scientific knowledge. Myriad, for example, identified these genes and linked them to breast cancer.
Thus, some argue that inventors or discoverers like Myriad should be rewarded for their work with a patent. These patents also incentivize people to innovate in the future as the reward (namely the exclusive opportunity to manufacture and sell the patented good), is increased by the ability to temporarily monopolize the invention or discovery.
But others say that patents are unjust, citing the patients, in Myriad’s case, whose lives could be saved if patents didn’t exist. This side argues that even without patents, there is still the incentive to innovate because the first one to discover or invent a good will still have the ability to put their product to market before anyone else.
This side also holds that by allowing everyone to use a new good, other people can make new innovations based on said good. This, they say, allows for greater overall improvement in society.
Imagine if someone patented the wheel and didn’t allow anyone else to use it for an arbitrary number of years. How would this have affected society? It certainly seems that prohibiting society to use a recently-developed good has detrimental effects on the very people that said good could help.
Jonas Salk, the inventor of the polio vaccine, seemed to agree.
In the 1950s, polio was considered a serious health problem in the United States. When a polio outbreak in 1952 killed over 3,000 people and left over 21,000 disabled, it became evident that something needed to be done.
Salk, a medical researcher and virologist, began field trials in 1954, and Salk himself reportedly worked 16 hour days, 7 days per week for years. With Salk’s hard work and over 300,000 workers and volunteers at his side, a vaccine was announced to be safe and effective in 1955.
When Ed Murrow, an American broadcast journalist, asked Salk "Who owns this patent?," Salk replied, "No one. Could you patent the sun?"
Salk could have made millions, maybe billions, of dollars if he had patented the vaccine, and he still would have been credited with saving thousands of lives. Yet, he realized that the public could use his invention more than he could use (or deserved) the money. Thanks to Salk's refusal to patent the vaccine, lives were saved and society was made a better place.
This same thinking should be applied to all patentable products, including genes. If the public is allowed to use the inventions and discoveries that people make, all of civilization will be benefited and the price of revolutionary and life-saving technologies will decrease as temporary monopolies end.
Hopefully, the Supreme Court will rule against Myriad so that we as a society can research additional ways to cure breast cancer in the future and save millions of priceless lives.