The Supreme Court is about to decide whether human DNA can be patented.  On April 15th, I’ll be speaking on the steps of the Supreme Court as this case is heard, and you are invited to join me!  I’m doing this because this case is going to determine the future of cancer research.  And if you aren’t familiar with the issues yet, here are four common arguments in defense of human gene patents…and why these arguments are wrong.

“Human DNA patents encourage innovation.” 

Not really.  Myriad Genetics co-founders Mark Skolnick and Walter Gilbert raised $570 million from investors…and it took 17 years to break even from their patent on diagnostic testing for the BRCA gene.  Just as personal computers were an expensive and scarce technology back in the early eighties, the BRCA gene test started out as expensive and scarce new advancement in diagnostics in the nineties.  To protect their intellectual property, Myriad charges prohibitively high royalties to cancer research labs who are studying the BRCA gene.  Fast forward two decades, and gene sequencing is rapidly becomes faster and cheaper.  Myriad’s revenue on BRCA diagnostic testing STILL comes from protecting their right to fix the price of the BRCA test (currently at $3340) when nowadays the cost to sequence our whole genome is around $5000.  Any scientist would tell you that this is highway robbery!

It seems like Myriad is stuck in the 90’s, relying on a business model that overcharges women for a genetic test that is quickly becoming outdated. Nowadays, literally dozens of labs and startups have the capability to develop a cheaper, better test and Myriad is standing in their way.  Allowing Myriad to fix the price of this test based on their discovery of BRCA gene mutations creates scarcity, and it’s widely known in the world of IP that creating scarcity is a shitty and outdated business model.  Especially when lives are at stake.  It just doesn’t work in today’s world.

“Scientists won’t research the BRCA gene if everyone is stealing their discoveries.  We must protect them with patents.” 

This idea is obsolete and here’s why: we are leaving tons of money at the table when we reward scientific competition before collaboration in a budding genetics industry.  The reality is that when biotech companies patent human DNA, they bring subsequent innovation in cancer research to a screeching halt.  Precious money, time, and resources goes toward defending the IP of the first mover, rather than developing innovative new tests and gene therapies.  And the result is that people like me can learn that they have an 87% chance of getting breast cancer, but the key to targeted gene therapies to fix the problem are blocked by the patent system.  Science and industry remains stuck at the discovery of the gene, rather than advancing to preventative treatments for cancer and other diseases.  It used to be estimated that 20% of the human genome has been patented, but unfortunately this trend has grown faster than we can keep up.  Now 41% of the genes in the human genome have been patented!

Under Myriad’s business model everyone loses: investors who waited 17 years for their ROI, customers who are being overcharged for the test, and scientists who spend their careers defending their gene mutation discoveries rather than moving forward cures for cancers caused by those mutations.

“Isolated DNA mutations aren’t a product of nature.  Myriad invented something new and useful.“ 

One of the big questions in this case is whether or not isolated DNA sequences are found in nature.  That’s because you can’t patent laws of nature.  Here’s where we get into a lot of tangled arguments in IP law about how the process of extracting DNA fragments transforms that DNA into something new and useful.  In federal court for example, Myriad’s patents were upheld because the federal judge bought the argument that isolating DNA in biotech was similar in concept to extracting molecules from crude oil in the petroleum industry.  I might buy this argument if we could bottle up my mutated BRCA DNA and use it to treat cancer patients to cure them.  But the discovery of mutations themselves are useless if we don’t know how to repair those mutations.  There is nothing new or useful about the substance that Myriad has extracted from our genome.  It exists within me.  I’ll tell you what’s useful: substances that can repair the BRCA mutation and prevent women from getting breast cancer.  Go find that and patent it!

Myriad’s patent on the BRCA gene created viable business model that brings science to the market and saves lives. 

Maybe this was true in concept two decades ago.  But while other companies like Quest Diagnostics, Merk, and Abbot Laboratores have found ways to adapt to a changing diagnostics market, Myriad has remained fat and lazy on the profits they make from their BRCA monopoly.  Imagine this: if Myriad Genetics founder Mark Skolnick had instead decided to allow the most talented minds in the world to improve upon ways to test and treat BRCA gene mutations, perhaps we would already have gene therapies to repair damaged BRCA DNA.  Maybe I would still have my natural breasts.  And perhaps somebody would be a bazillionaire for discovering targeted gene therapies for various mutations of the BRCA gene.  But instead, we’re in this ugly and brutal intellectual property battle that creates a toxic form of competition in the world of cancer research.  What a waste of precious time and money.

So…Join Me April 15th. This case is so entangled in scientific and legal jargon that it’s hard for the public to even understand what’s going on….and therefore to care about it.

But this is how we clear the path to finding smarter ways to prevent and treat cancer, rather than the same slash and burn methods we have now.  We need to make way for a better way of thinking in science and biotech, where we reward people who know how to share their knowledge when new gene mutations are discovered.  We need to figure out how these companies can use our data ethically in the future.  We will have to evolve to cure cancer.  For me, that starts changing an old way of thinking.  I hope you’ll join me.