DNA. It’s in our blood. And
recently, it’s also been in the news. This Monday, the Association for Molecular Pathology
is going up against Myriad Genetics in the Federal Supreme Court.
Myriad recently spent millions of dollars researching possible causes for
cancer, and found two genes to be associated with breast and ovarian cancer.
These genes have a high yield in predicting who will have cancer and who won’t. For those of you who don’t know, this is a huge breakthrough with the
potential to save thousands or even millions of lives. Now, Myriad wants to
patent these genes. And why? For money of course! And you may ask ‘Why would this have to go in
front of the Supreme Court?’ Well, for the first time our
constitution is vague and ambiguous on a topic, if you can imagine that. Like
the other posts on the blog, I’m going to state both sides of the argument, and
then attempt to bash the side I disagree with just for fun.
To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.
-US Constitution
Patents
were debated to be founded anywhere from 1331 in England to 1474 in Italy, and
were and are used as an incentive for inventors. Essentially, the inventor of
the patent, and the inventor alone, can sell his invention for a given number
or years before others start copying the invention and selling it themselves.
This gives the inventor a huge leg up on other inventors because it allows him
to make money off of his invention without any competition, which the
government presumed the inventor may spend creating another invention, and
furthering science and perhaps the economy. In the United States, however, one
may not patent nature. National Public Radio used Albert Einstein as an
example, saying “even though it may have taken Einstein a long time to figure
out that E=mc2, he couldn't have patented that
law of nature.” Many argue that
DNA is part of nature. Is it not? Isn’t it inside each and every one of us, and
for that matter, every living organism known to man?
Myriad
takes a different standpoint. Gregory Castanias, Myriad's lawyer, states the
following on the findings of the genes: "it is the final step in an
extraordinarily complicated set of inventive actions that led to the creation
of this molecule, which had never been available to the world before."
Well Mr. Castanias, congratulations. You found the genes. But, you failed to
invent anything through your findings, and they are part of nature, so these
patents should be illegal!
From
an ethical standpoint, it’s terrible that Myriad Genetics is attempting to
patent these genes. By patenting them, the company is preventing any and all
research to be done on them for a large number of years. During this time,
millions of patients will be dying of the cancers that the study of these genes
can prevent.
However,
one cannot be this blunt without feeling bad for Myriad Genetics. They invested
millions of dollars in research to find these genes, and yet, other than the
benefit of helping the world, they get no money in return. Should they? If so,
what should they get and where should it come from? If not, why don’t they
deserve it?
I think that having a patent on Genes is ridiculous. However, I think that Myriad Genetics should get first priority on patenting and cures or medicines they can make of off this find.They poured millions into this research probably knowing getting a patent on the genes was a long shot at best, but they also knew this is very beneficial research. What kind of precedent would it set if a company who found these important genes got no financial compensation, it would essentially eliminate any incentive to do this important work, short of some billionaire philanthropist backer.
ReplyDeleteI agree with Ellis. Myriad should get first priority of patenting cures and potential treatments for these carcinogenic genes. If these genes are actually large factors in causing cancers closing off research for companies other than Myriad would just be inefficient. Researching cancer treatments isn't about making large sums of money (although it can be), but about helping save lives. And if other people can not research these important genes, the rate at which possible treatments could be found would decrease.
ReplyDeleteThe line between discovery and invention is unclear in these kinds of situations... Extracting strands of DNA and modifying it, in my opinion, leans more towards discovery. Genes, like other "discoveries" (eg laws of nature) should not be patented. It's immoral (preventing research, innovation, leading to preventable deaths, etc etc).
ReplyDeleteI think this centuries-old patent system needs an overhaul. It's anachronistic and fundamentally flawed for modern day use. Is it "moral" to own and sell information? The answer becomes less and less clear. These attempts to patent genes, along with recent cases of patent trolling, is just an example of how patents are starting to stifle innovation instead of promoting it.
When the Supreme Court hears Association for Molecular Pathology v. Myriad Genetics it will have to weigh the arguments for and against gene patents in the context of the law. When the private citizen does it, he must weigh them in terms of ethics. My understanding of patent law is that one does not need to provide a demonstrable or actionable product in order to obtain a patent, merely some sort of innovation. Most patents are not products themselves, but ideas. Some of them aren't even scientifically feasible as inventions. Legally, Myriad may be within their rights to patent the genes.
ReplyDeleteBut ethically, I have serious problems with that. If Myriad becomes the sole researchers of the BRCA genes, and the sole benefactors of any medecine that comes as a result of their work, then innovation will be stymied, costs will skyrocket, and people with serious medical conditions will suffer. As much as I favor relatively free and uninhibited trade, I cannot help but think that the impact of this will be similar to what has happened in the pharmaceutical world. Because of how pharma patents work, once a company creates a medicine, they have exclusive production and distribution rights. This astronomically drives up the price for consumers, and with the state of American healthcare as it is, too many cannot afford the meds they need. Might a similar thing happen with Myriad? I think so.
Worse, at least in the competitive world of pharmaceuticals, you may have many companies working on one product. In this situation, only one company could conduct the research.
Actually, that might make a decent legal and economic argument: that the patent would act as an undue interference by the government into a free and fair market. So I say to the Association for Molecular Pathology: good luck!
There are a couple of points I would like to make. Medical research is an entrepreneurial field, and is therefore inherently uncertain. No one knows at what point they will make a breakthrough that will allow them to create a new medication. Entrepreneurs in the medical field deal with treatment, be it in the form of pills, radiation, or whatever, and that is how they make their money. Until they develop a product, they are just acquiring new knowledge. This knowledge may tomorrow lead to a life saving product that makes the company millions, or it may just be knowledge that is further built upon for many years before leading to a final product. Yes, Myriad spend millions upon millions researching this, but as my sister likes to say, tough noogie woogies. Until there is a product, you have nothing to sell, and nothing to patent. After all, Watson and Crick were some of the many contributors to the discovery of DNA, and they didn't patent their knowledge. If they had, then any sort of genetic research would be even more expensive than it already is, and consequently, the same thing would happen to medicine and treatments for all genetic diseases. As stated many times in above comments and by Harrison in the main article, no one can own something that belongs to nature. Additionally, patents were made to further scientific research, but at what point can we say that patenting is actually hurting the public much, much more than it is helping it? If this is the case, then our whole patent system needs to be reviewed (I believe this does need to happen, but that's a whole other argument).
ReplyDeleteOn a separate note, are there truly no bounds to the greed and apathy of the selfish? Patenting this gene would exponentially drive up the cost of any treatments that come as a result of it. I don't believe it necessary to continue with this train of thought, as the ramifications are relatively obvious, especially to the intelligent bunch reading this blog. This is going to be difficult for Scalia, but he's going to have to get off of his high, idealistic, constitutionalist horse, and make a decision that actually protects the American people, which is what the constitution and supreme court were meant to do in the first place.
First, let me say up front that I am a former employee of Myriad Genetics. Second let me say that I personally believe that genes as natural products should not be patented--a belief I held prior to, during and after my employment at Myriad. (with some caveats that I won't discuss here.)
ReplyDeleteNow let me say how disappointed I am in the lack of any real data or basic factual understanding of the patent or the case, that has since been decided by the Supreme Court, put forth in this piece.
First, Myriad was in fact issued patents on BRCA1 and BRCA2 by the US patent office in 1994 and 1995, respectively. They have held these patents for almost 20 years now.
Second, since these patents were issued, almost 10,000 papers by 18,000 authors around the world have been published on BRCA, which by the way, makes them two of the most widely studied genes to date. So, where is any data to suggest that research has been inhibited? I challenge the authors to show any published data corroborating the claim that millions of patients have or will die because of the patent. Those statements are pure hyperbole.
Third, it is not the constitution that is vague or unclear. It is section 35 of the United States Code, specifically Section 101 having to do with patent subject matter eligibility, that requires clarification.
I will end here. I enjoin the author to write a follow up piece now that the Supreme Court has ruled and really delve into the facts to see if his opinion or reasons for his opinion are altered.