Wednesday, May 13, 2009

ACLU sues over patents on breast cancer genes

The ACLU and Yeshiva University's Law school filed a lawsuit against Myriad Genetics and the University of Utah Research Foundation, which own the patent rights to the BRCA1 and BRCA2 genes. Those are the genes that account for most of the heritable breast cancers, which is about 5-10% of all cases. We've discussed the ethics of gene patents in many of my classes, so I'll be interested in how this case turns out. Usually most of us agree that you shouldn't be able to patent a gene that you found, and I think this is a good example why:
"Ravicher offered an analogy to describe the plaintiffs' argument, saying, "It's like saying if someone removes your eyeball ... just because you remove the eyeball and wash it off, that doesn't make the eyeball patentable. "Now if they create another eyeball out of plastic or metal, then you can patent that."

..."It's like trying to patent the moon," he said. "You didn't do anything to create it, just discovered something that already existed. You can't patent things that are publicly available, that anyone can find. You have to create something, make something, do something with the thing.""
Now, if you changed the gene somehow to have a unique function, that's different. But I really don't think you should be able to patent a gene just because you found it. It slows scientific research and makes it more difficult for doctors and patients to get affordable testing. Usually the number one argument I've heard in my classes for patents is that you spent all that time working on something, you might as well get the credit for it. But as my professor said, if you want credit, publish a peer reviewed paper on it - then everyone will know it was you.

That being said, I don't really know why the ACLU is being involved. I think their first amendment arguments are kind of weak, and that this can be overturned by patent laws alone. Maybe Yeshiva University's law school just wanted the monetary help?

What are your thoughts on gene patents?


  1. There're two perspectives that kind of go in opposite directions. The legal/conceptual perspective, IMO, runs pretty much as you say -- the whole point of a patent is to cover original ideas and inventions, things made not things that the body already uses.

    Economically, on the other hand, there's some reason to think that broad patent protection is necessary to give people the right kinds of incentive to invest in research. On the other hand, that distorts a lot of markets (there's a reason pharmaceutical research is heavily weighted toward blockbuster drugs), and there might be other ways, like increasing government funding for research, to do that. It's a really difficult issue.

    (If you're interested in this stuff, Shamans, Software and Spleens : Law and the Construction of the Information Society, by James Boyle, is probably the best book ever written on it.)

  2. If you ate Spam and pissed out gold nuggets, could you patent your pee?

    You created the gold nuggets, right?

  3. I'm not sure what's the point of patenting a gene. What exactly are you going to do with the patent? How do you enforce it? Do you forbid people to look at the sequence of the gene?

  4. I am against it. Not only does it not make sense to patent something you don't create, the only reason I could see for patenting the gene would be to then try to gain profits on the cure -- one you didn't necessarily research the cure to, but you have the patent to the gene that the cure fixes. That would only discourage research on patented genes. (though maybe this wouldn't happen -- it was just a first thought)

    Plus, it just seems wrong -- patenting information about the universe? What the fuck? I'm going to start investing in possible outcomes of promising research projects.

  5. They did not create a gene. They did not modify it. How can it get a patent? That seems dumb.

  6. In order to be patentable, an invention has to be a non-obvious improvement on the prior state of the art. I can't see how genetic information -- as opposed to a process to discover or which uses genetic information, or an artificially manufactured gene -- could possibly qualify. I mean, there are a lot of questionable software and business method/process patents out there, but at least there there's some claim that an inventor created the object of the patent. I wonder if anyone's ever tried to patent a number, or a musical note.

  7. I make many of the same arguments regarding innovation and science in my new book "Who Owns You?"

    At least, I hope this brings some needed attention to this ongoing issue.

  8. The patent covers the isolated version of the gene, which does not occur naturally. Because of it, Myriad has the only lab that can do the breast cancer screening tests, and charges something like $3000 a pop for it. Furthermore, the law is quite clear that this was a properly granted patent.

    This case, to me, seems to be simply a means of raising the profile of weak-patent lobbying groups (such as those funded by the established software giants). It won't go anywhere except to inflame anti-patent rhetoric, which is probably bad when ignorant of the arguments on either side.

    Patent law is intended to "promote the progress of science and the useful arts" by giving monopolies for new inventions. The idea is not to simply give credit for research already being performed, but to actively encourage the research in the first place and, crucially, to encourage disclosure to the public of the research.

    To respond to the sentiment that patents actually hinder research, I think this can appear superficially plausible, but ultimately not true. Because of the patent regime, most inventions become documented publicly. With this disclosure comes the ability for incremental invention based upon disclosed ideas of others. This sort of invention constitutes the vast majority of innovation today (as opposed to "flash of genius" ideas). Without patents, imagine how many people would not disclose their inventions for fear of copycats?

    Paul is certainly right that patents distort the market but every sort of government intervention distorts the market. That doesn't make government intervention per se improper (unless you're a true libertarian, I suppose..). There are very strong arguments to be made that the patent regime distorts the market in a very positive way. For example, let me pose this question: would you rather have a $3000 breast cancer screening or no breast cancer screening?

    Steve, yes people try all the time to get patents on things like numbers and notes. We don't let them, though.

    -Patent Office Employee