Should the Genes that Cause Breast Cancer be Patented?

By Vera Viner

Note: Originally written on April 8, 2013

There is a major debate taking place within the breast cancer community right now as to whether human genes – the essence of life! – can be patented by companies. While this clearly benefits the pharmaceutical industry, scientific progress and patients’ lives are put at risk.

Currently, the mutated forms of the BRCA1 and BRCA2 genes – those that cause breast cancer – are wholly owned by Myriad Genetics due to a patent. Patent protection within the biomedical sector was first observed in 1980 when a scientist from General Electric filed a patent on a bacterium that he engineered genetically to consume oil, according to the New Yorker. The Patent and Trademark Office originally rejected the patent claim but after a court case that went before the U.S. Supreme Court, the patent was granted.

On April 15, 2013, the U.S. Supreme Court will once again be called on to decide whether a company has the right to hold a patent to the breast cancer genes or any human genes for that matter, the Huffington Post reported. Breast Cancer Action is one of the organizations that has been listed as a plaintiff against Myriad Genetics.

The problem with gene patents is that anyone in the medical industry that wishes to research further on these life-sustaining substances will need to have a license and pay a subsidy to the company that holds ownership. Even a patient that has either been diagnosed with breast cancer or is at risk for the disease will have trouble obtaining a gene analysis. This information could be crucial for some patients, especially when it comes to determining the best course of treatment.

“Just as we enter the era of personalized medicine, we are ironically living in the most restrictive age of genomics,” Weill Cornell Medical College’s Christopher E. Mason told the New Yorker. “You have to ask, how is it possible that my doctor cannot look at my DNA without being concerned about patent infringement?”

The Financial Times reported that the issue the Supreme Court will have to determine is whether Myriad Genetics’ isolation and characterization of the BRCA1 and BRCA2 genes pose enough inventiveness to justify patent protection. So far, 4,000 human genes have been patented in the United States. Such lenient granting of patents by the U.S. Trademark Office could pose problems for personalized medicine in the future, as the sequencing of thousands of genes could be necessary to propose better treatments or preventive procedures.

The Washington Post also outlined how a past pioneer in vaccination – Jonas Salk – refused to patent the polio vaccine, claiming that such an action would be similar to patenting the sun. The idea of patenting genes really does seem absolutely absurd, as our DNA should in essence be our own. Women are not commodities. We are not products that can be bought or patented. What side will you stand on next Monday during the Supreme Court hearing?