Angelina Jolie and the Supreme Court: can genes be patented?

On Thursday, the US Supreme Court handed down a landmark ruling regarding the ability of private companies to patent and own DNA. The Supreme Court held that DNA was “inherently naturally occurring” and therefore fell outside the parameters of US patent laws. Yet the applicant, Myriad Genetic Inc, did have a partial victory. The Supreme Court, led in this case by the Conservative Justice Scalia, held that synthetically created DNA so-called “cDNA” can be subject to patent applications. The logic of this legal distinction is difficult to follow. We know that most patent applications come from major pharmaceutical corporations seeking to patent a particular prescriptive medication for general use. The elements in these medications are, in the main, what Justice Scalia would call “naturally occurring” as they are, for the most part, natural chemical compounds found in our natural environment. So should they, if we follow Justice Scalia’s supposed logic, be subject to patent laws? Arguably not.

Yet many refuse to believe that the reasoning in this case is by any means the real motive for this decision, nor is it the motive for allowing circumspect patent laws in the first place. For example: most industrialised nations permit major pharmaceutical corporations to patent medication for a limited period of time. Why is this? The motive is very simple. Pharmaceutical companies plough vast sums of money into research and development; indeed many medications never even reach the open market. So in order to encourage this cycle we allow companies to patent their designs for limited periods of time. But why limit the patent period at all? In effect it is simple pragmatism. While we wish to reward companies who have successfully developed a product we do not wish to grant them a monopoly over a particular discovery or indeed over an emerging medical industry. Hence, after a certain period of time, generic manufactures will be permitted to manufacture the medication previously under patent.

This same logic underlines the Supreme Court’s decision in this case. Myriad Genetics, a Utah based medical research and screening company, attempted to patent two genes linked to a higher likelihood of developing breast and ovarian cancer. Myriad carries out tests for BRCA genes, recently brought into the public eye when actor Angelina Jolie revealed she had a double mastectomy after learning she tested positive for one of the genes.

If the patent over the DNA itself had been successful, it would have given Myriad an effective monopoly upon ovarian and breast cancer screening in the United States. Why? Because the patents allowed Myriad, which sells the only BRCA gene test, to set the cost and other parameters of tests, making it very difficult for women to access alternate tests or get a comprehensive second opinion about their results.

Yet the decision to permit Myriad to patent certain ancillary methods of screening via so-called “cDNA” gives the company some hope for the future.  As Dr Penny Gilbert, a partner at UK law firm PowellGilbert and expert in life sciences, explains: “It was by all accounts a pragmatic, compromise decision.” “It’s not as bad as had been anticipated by the biotech industry, because it is clear you can have patents for cloned genes in certain circumstances” Gilbert said. “Modern methods of cloning genes will still be patentable.”

Yet the Supreme Court’s decision should be welcomed by ordinary women as it has made the cost of screening much less prohibitive. Myriad, at the outset of the case, sold the only BRCA gene test in the United States, costing just over $3,000. Not long after the ruling, DNA Traits, a clinical laboratory of Gene By Gene Ltd., said it would offer the same BRCA gene test for $995 – less than one-third of Myriad’s price.

The Supreme Court ruling, coupled with Angelina Jolie’s decision to go public with her own screening and her subsequent double mastectomy, is good news for cancer suffers and activists in the United States.

Sources include Japan Times and the Guardian.

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