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Supreme Court to Hear Case of Human Genes Under Corporate Control

Plaintiffs fight patents on two genes associated with hereditary breast and ovarian cancer

Common Dreams staff

Structure of the BRCA1 protein, a gene that can have mutations that lead to breast or ovarian cancer. (emw/creative commons)

The US Supreme Court announced (pdf) on Friday that it will hear a case on whether human genes can be patented and thus under corporate control.

Salt Lake City-based Myriad Genetics has patents on two genes associated with hereditary breast and ovarian cancer, creating a monopoly on genetic tests for them. This prevents women from being able to get tests from other laboratories or even second opinions and provides insured profits for Myriad.

While all humans have the two genes, BRCA1 and BRCA2, the ACLU, which filed suit against Myriad, explains that Myriad "obtained patents on the 'isolated' forms of the two genes, which simply means it patented the human gene once removed from the cell. This includes the BRCA genes from every person in the United States."

The ACLU and the Public Patent Foundation (PUBPAT) first filed suit against Myriad charging that "genes were products of nature," and a federal district court invalidated the patents in 2010.

But in August, a federal appeals court ruled that the genes could be patented.

Friday's decision means the Supreme Court will review the appeals court decision.

"It’s wrong to think that something as naturally occurring as DNA can be patented by a single company that limits scientific research and the free exchange of ideas," stated Chris Hansen, staff attorney with the ACLU Speech, Privacy and Technology Project. "The Court of Appeals failed to consider the Supreme Court’s most recent ruling on patent law."

"Myriad did not invent human genes, and has no right to claim ownership of them just because they removed them from the body,” added Daniel B. Ravicher, executive director of PUBPAT.  "The government does not have the right to give a corporation the exclusive power to control what we know about our own genetic makeup."

The Wall Street Journal reports that a decision in the case is expected at the end of June.

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In an October 2011 interview with Democracy Now! (see below), medical ethicist Harriet Washington explained the problem with what she calls the medical-industrial complex: "A corporation owns the patent, and what does that mean? It means not only can it do whatever it wants with this gene, it can prevent other people from working with it. In Paris, for example, a French researcher at the Curie Institute found that this particular test, the test of Myriad, actually missed a lot of breast cancers. But that finding could never have been made here in this country, because when other people try to work with these genes, Myriad sends a cease-and-desist letter and tells them, 'We have the patent on this. You cannot work with it.' So, it’s clear that the research into breast cancer treatment is being stymied by this patent. And Myriad is concerned with, as you heard, collecting its $3,000 to $4,000 fees from each woman who gets a BRACAnalysis. I think it’s nothing short of criminal."

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