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. All they need to do is enlist the help of a law firm that offers services in patent litigation, like Sidley Austin (https://www.sidley.com/en/services/intellectual-property-litigation) to see what these types of laws are and how they can make sure that they adhere to them. As you can see, it is that simple! But I’m not sure what their involvement is in the first place. Maybe Yeshiva University’s law school just wanted the monetary help?
What are your thoughts on gene patents?