There is a case that may be heard by the Supreme Court that will decide whether a not companies can profit from ownership of human DNA. I have been following this case since 2009, and I get cross-eyed doing the mental gymnastics to develop an informed opinion about patent law. But I care…a lot…and think you should care too. Why? Because ACLU vs. Myriad raises questions about my humanity. Myriad Genetics registered a patent to legally own my DNA after they discovered the breast cancer gene. I know this is an oversimplification, but stick with me while I grapple with some weighty questions:
- Should the government reward invention by upholding a patent? I think entrepreneurs and scientists should be rewarded for taking risks and discovering or inventing new things. Maybe this is why this court case is so frustrating, because this court case puts me at odds with my own sense of opportunism. I have no problem with biotech companies owning a patent on a new life-saving medical device or a new drug, but owning a patent on human DNA takes opportunism too far. Myriad discovered a gene, and they legally own it – even though that gene is in my own body. But this doesn’t even get to the core question in this case. Which leads me to my next question…
- Should companies have the right to patent something that occurs in nature? Generally speaking, courts have agreed that you can’t patent a substance that occurs in nature, unless you transform that substance into something new. You can’t patent apples because nature made apples, but you can patent chemicals that you mixed together to make a new useful compound to kill the bugs on apples. Earlier this year, the SCOTUS ruled on Prometheus vs. the Mayo Clinic and reaffirmed the general rule of thumb that nature can’t be patented. At that point, SCOTUS tossed the Myriad case back to the federal courts because it was so similar. But the Federal Appeals court upheld the validity of Myriad’s patents on human DNA, comparing a patent for human DNA molecules to valid patents held by petroleum companies when they extract of naturally occurring hydrocarbon molecules in crude oil. That’s right, the decision last week says that my DNA is patentable because crude oil molecules occur in nature and therefore they are patentable. WTF?!
- Would we know about the breast cancer gene if it weren’t for Myriad? Myriad argues that we wouldn’t have a test for the BRCA gene if they didn’t have the financial incentive to discover it. Take a look at the clip from above from a documentary called In the Family, and watch the nice young lady interview Mark Skolnick, the founder of Myriad. He tells himself Myriad did the world a great service by beating out other labs who could have found the gene – but in the same breath he says rather arrogantly that Myriad was “doing it to beat the other team…period.” This implies other labs would have found this gene if Myriad didn’t. So we would have the test with or without them – but they get to call dibs because they got there first. Thanks for caring, Mark. What’s next? Wanna patent my eye color, or my nose genes? I’ll bet you do! When are you going to lower the price on that BRCA test so that women can afford it?
Do the questions above even matter in the ACLU vs. Myriad case? Not really. Any patent lawyer reading this would say I’m making irrelevant arguments. And they would be right….the eyes of the law are dispassionate. I started trying to write all sorts of legal arguments in this post – but then gave up and decided to leave that to the lawyers and scientists. Instead, I’ll write what matters to me as a mutant. I hope that either SCOTUS or Congress finds a way to see the ownership of human DNA as an infringement on my human rights. Myriad owns a patent on pure human suffering – and the suffering of three generations of women in my family. I don’t care what inventions they patent to test or cure that suffering in the future, but keep your greedy little hands of my genes…this gene does occur in nature, and it belongs to us all.
So in closing, your honor, I think patents belong to awesome inventions like Spanx, and shouldn’t be given to jerks who discover and attempt to own fragments human DNA. Comparing my DNA to a commodity like crude oil dehumanizes me. I have nothing further.