A long time back, 1995 to be precise, Edward R Murrow during a television interview, asked Dr Jonas Salk, who he thought owned the patent on the polio vaccine. The reason being, was that Dr Salk, with his colleagues at the University of Pittsburgh, had developed the breakthrough inoculation – his reply was ‘’Well, the people (own it), there is no patent, could you patent the sun?’’ His reply was so spontaneous and it made perfect sense as human genes cannot be patented – in reality they had not invented the polio virus – it was a product of nature. All they did was determine that the correct injection of killed virus could immunize people against the live one.
This is all leading to a Utah-based biotech company, namely, Myriad Genetics and the US Supreme Court’s ruling that genes cannot and will not be patented. No one can argue Myriad’s exclusive right to the tests it actually developed – but by claiming rights to the BRCA genes themselves, Myriad would have possessed a piece of our biology! For a long time now its patents have stopped the use of improved and inexpensive technologies, forcing insurers and patients alike having to pay $3000 to $4000 for tests and examinations that would normally have cost less than $100.
It is said under the Patent Act of 1952 that ‘’human-made inventions’’ can become private property but on the other hand ‘’products of nature’’ cannot – during the 1980s this was still crystal clear and bioengineers synthesized artificial DNA molecules for analytical and beneficial use. ‘’Probes’’ and ‘’primers’’, as they were called, were laboratory discoveries and so the Patent Office treated them as such. Then during the 90s the world of genetic science expanded and they allowed a very large number of companies to patent sections of naturally occurring DNA extracted from human chromosomes – their reasoning was that these naturally occurring genes qualified as ‘’human-made inventions’’ as they had been cut off, so to speak, from their natural environs.
With this debatable policy, Myriad secured patents on the BRCA genes that are in every human cell. Moreover they also asserted the rights to all potential changes in those genes. To add to this it also patented the association between BRCA mutations and the risk of ovarian and breast cancer.
There was no stopping Myriad, they enforced their rights vigorously, and by doing so they alienated scientists and health advocates from every angle. After a coalition challenged the patents’ legality, a district court ruled in their favour and found that as ‘’products of nature’’, the BRCA genes could not, lawfully, become private property. It didn’t end there – a three-judge appeals panel overturned the ruling and voted two-to-one that Myriad made the genes more functional by simply isolating them from the surrounding DNA in both human X and Y chromosomes – the Supreme Court had to decide who was right.
A final ruling not allowing genes to be patented could free the BRCA genes from Myriad’s control and it could nullify 4000 other gene patents – this in turn would expand the pursuit for much needed medical knowledge.