BY BARRY BELMONT
Published December 6, 2012
On May 5, 1998, a patent for human gene BRCA1 was issued to a company by the name of Myriad Genetics, Inc. and the University of Utah. Less than six months later, Myriad Genetics was granted another patent for a related gene, BRCA2.
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These were neither the first nor the last patents granted for human genetic material, but these instances have been the source of constant controversy for nearly a decade and a half. One of the principle reasons for this controversy stems from the fact that women with BRCA — a breast cancer susceptibility gene — mutations are five times more likely to contract breast cancer than the general population and have a lifetime risk 10 to 30 times greater than average to suffer from ovarian cancer. Because these genes are patented, anyone wishing to look for them — be they researchers, doctors or patients — has to pay Myriad Genetics. And pay dearly.
In May 2009, the Association for Molecular Pathology and several other advocacy groups aided by the American Civil Liberties Union brought a case against Myriad, University of Utah officials and the U.S. Patent and Trademark Office claiming that BRCA genes are not patentable as parts of nature. The original decision of the court in that case was successfully appealed twice and to this day, the BRCA genes have remained patented. However, on Nov. 30 the U.S. Supreme Court agreed to hear the plaintiffs’ argument on the patentability of human genes during its current session to decide once and for all whether human genetic information is subject to a protective government monopoly.
Proponents of gene patents contend that they incentivize scientists, inventors and engineers in biotechnology to create novel devices, develop new methodologies and promote further innovation by not keeping research or technology secret. This is the classic argument in favor of patents that views them as a trade of public disclosure for a guaranteed window of exclusivity to recoup costs and increase potential profits. Some see this as fair.
Others do not. Most opponents of gene patents argue that they stifle further research and limit patient treatments by forcing others to pay exuberantly high premiums. Furthermore, as an intrinsic part of human beings, our genes shouldn’t be subject to any sort of patent. It would be absurd, they reason, to live in a world where the notion of patenting someone’s blue eyes was dismissed but where patenting the genes used to make those eyes was embraced.
The problem with all of this is the uncertain nature of intellectual property as a whole. Regular property is simple and easy to understand. To own regular property means that one mixed some natural resources with their labor or legitimately traded with someone else who did.
I plow my garden, the potatoes are mine; I trade my potatoes with someone for a new plow, the plow is mine. Simple. Property of this sort can also be protected. I can put a fence around my garden and lock my plow in a shed. If one can’t potentially exclude something from others, then one can’t really own something after all, we don’t steal the air we breathe. But what of ideas?
Ideas do spring from a sort of combination between one’s resources and one’s effort, but they are not as easily protected. Certainly one could keep something secret, but this only prevents the transmission of an idea and doesn’t exclude another mind from thinking it. And, this case has to do with the fact that information — the stuff of our thoughts — isn’t so much invented as it is discovered. Our world is awash in information, and all we tend to do is collectively accumulate knowledge and piece it together to do new things for us. We merely take from the marble of nature the statues our limited time and present resources allow us.
In crafting our knowledge we don’t deprive anyone of crafting their knowledge, and vice versa: If I teach you about genes, I don’t suddenly forget about them. That is until some folks feel entitled to the information they have happened upon and wish for others should they come across the same information. Hence, patents. Patents are ephemeral fences surrounding thought-of gardens erected with real force. Myriad Genetics found a strip of information in the human genome and declared it theirs. Unfortunately, it’s no different than anyone else claiming that any other piece of information is exclusively his or hers.
The solution to all of this is to have tangible marketplaces; for ideas, for products, for everything.