Take Two #74: Can we Patent the Human Genome?


By Kyra-lin Hom

I apologize for missing all of you last week. I was finally moving out of my dad's house (an ongoing process) and simply ran out of time. I have now officially wedged my way into a three bedroom bachelor pad – yup, that's me and two of my male friends. My first new purchase of the apartment was a garbage can. You read that right. For several months they had been keeping trash in a slowly dying hamper. The lidded trash can has so far been a vast improvement. I'll keep all of you posted. I'm sure to collect many more interesting tales as time goes on.

But that's not what I want to discuss this week. This week I want to talk genetics, specifically the human genome. If you're at all the science-fiction fanatic I am, genetic enhancements are nothing new to you. Humans with hawk-like eyesight, superhuman hearing, or even no need to ever sleep are the sci-fi future's norm. If this is Greek to you, consider the current cinematic franchise known as the Avengers. Heard of the Hulk or Captain America? Those special serums that oomph'ed those men up to super-soldier status were genetic A-bombs.

Now imagine a world in which each of these genetic upgrades is patented. The Hulk is abruptly sporting “Novartis” in bold across each torn trouser leg, and Captain American is suddenly “The New and Improved Captain Pfizer!” Doesn't have quite the same ring, does it? And it begs the question of what his new emblem would be... moving on.

In this world, the human genome has been sliced and diced into its itty bitty individual genes and parceled out like so much land. Our bits and pieces are now thoroughly owned and patented by institutions. But wait! You can't patent nature, right? Otherwise Einstein and his descendents would be rolling in the dough from that little 'invention' of his known as e=mc2. Well, the answer is 'sort of.' As long as that bit of nature has been altered enough by human intervention, it can be owned. And someone along the lines of legal history (Judge Learned Hand in Parke-Davis v. H.K. Mulford) decided that as long as a chemical is removed from the human body, juggled and repackaged it's fair game.

What if, in this hypothetical future, an institution patents a specific mutation you just happen to come by naturally (what if X-Men become a reality)? Are you born with “Sanofi” stamped across your forehead? Well, it will probably depend on the legal precedent.

So why am I talking about this? Because so is the Supreme Court. As of April 15th, the case of Association for Molecular Pathology (AMP) v. Myriad Genetics landed itself firmly in their supremely capable hands. Myriad Genetics is defending its right to patent two genes that directly impact a woman's chance of developing breast or ovarian cancer, BRCA1 and BRCA2. The plaintiffs, AMP along with university researchers and women suffering from these diseases, claim these patents are invalid and furthermore in violation of human civil rights.

To be clear, by patenting these genes, Myriad owns the rights to any and all research, tests and information pertaining to BRCA1 and 2 and any chemical containing “at least 15 nucleotides” (the basic structural units of DNA) of the BRCA 1 gene. Keep in mind these genes are directly related to cancer. Does this bode well for the company's economic success? Most definitely. The company charges $3,000 per test when estimates show the actual cost being around $200. Progress and patient well-being? Not so much.

The case rests almost entirely on whether or not Myriad Genetics can prove they have sufficiently altered the genes in question by isolating them from the entirety of the human genetic code. The company lawyers compare their BRCA genes to a wooden baseball bat, saying that a baseball bat is nothing more than a bit of fancy wood removed from a tree. Um... no. Following this logic, Myriad is patenting the bat, the wood, the trees – everything but the whole forest.

Did these lawyers actually look at the original wooden baseball bat patent before throwing this example out there? I did – filed in 1902 for those who are curious. The patent is all about geometry, the design of the baseball bat. Nowhere does it say anything about exclusive rights to the wood.

I think the whole issue is ridiculous, and yet I must be missing something because the case has made it all the way up the ladder. Plus other countries around the world have allowed institutions to patent human genes. These countries, however, have strict and specific policies similar in spirit to our Constitution's Article I, Section 8, Clause 8 (commonly called the “Progress Clause”) that allows research to continue unhindered. But for that to work here in the US, as pointed out by NPR, we would need “an active Congress.”

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