by Renee Rotto

Created on: June 16, 2010

Recently, a federal judge issued a 152-page decision that invalidates seven patents that are related to the genes BRCA1 and BRCA2.  The mutation of these two genes have been linked to breast and ovarian cancer but the company holding that patent also holds a monopoly on the testing for the genes keeping prices high and preventing women from getting confirmation from other laboratories.

The decision is more than likely to be appealed even though the representatives of Myriad Genetics, the company that holds the patent, has told it’s investors that “regardless of the results of the outcome of this particular lawsuit, it will not have a material adverse effect on the company.”  Myriad Genetics, had asked the court to dismiss the case, claiming the very isolation of the DNA from the body “transforms” it thus rendering it able to be patented.  The argument against gene patenting says that products of nature fall outside the realm of things that can be patented. 

Presently, 20 percent of all human genes have been patented. With 20,000 to 25,000 of human genes being mapped and sequenced through the Human Genome Project, those are considered public domain, and not considered new and not able to be patented.  To be able to patent a substance in nature it must somehow be altered or changed from its original form such as using part of or being synthesized or altered in a laboratory.  Human genes must be specified as to a new use, such as a diagnostic test. This argument is an ethical one since many consider the human genome as being sacred even though humans share some 25 percent of their genes with chimpanzees. 

Of course patents were put in place to protect the inventor and recover the costs related to research and discovery.  Patents are for inventions that are “useful,” “novel” and “non obvious” and carry a description that enables the use for a stated purpose.  It can be argued that if a company charges $3,000 for a diagnostic test, then the price of that test may prevent some patients from seeking medical testing.  It may not only be an ethical question we are dealing with here as well as a question of greed.  By allowing human genes to be patented, we may be guaranteeing commercial companies unreasonable profits. 

During the Human Genome Project, thousand of genes were being patented some of those genes have been marketed and sold as products. Even though patents only last for a number of years, a 20-year monopoly seem too long when compared to the prevention of the health care needs of the general populace.  

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