Court Approves Cancer Gene Patent
Emily P. Walker, MedPage Today’s Washington Correspondent reported on a rather distressing Appeals Court decision: A company that makes tests for breast and ovarian cancer can patent breast cancer gene sequences, in effect ruling that human genes can be patented.
The ruling (2:1) reversed a lower court decision which ruled the opposite.
The U.S. Court of Appeals for the Federal Circuit -- a court that specializes in patent cases -- ruled that when a gene is isolated from the human body, it is "markedly different" and has a "distinctive chemical identify and nature" compared with the way it is found in nature.
This flies in the face of fact. By extension, why not remove a kidney from someone’s body and patent it? And that’s what the lawyers (opposing Myriad) argued. Doctors, and the ACLU, the Obama Administration all sided with that argument.
The opposing argument stated that it’s more like a tree (in nature) and making a baseball bat from it. Nonsense. There are many alleles (forms of genes) for any gene. That’s how evolution happens in biological systems. Isolating one allele doesn’t make it “yours”.
My example would have been “Christopher Columbus and The Discovery of The Americas”: No one “discovered” America. Humans walked across the Bering Land Bridge and populated an unpopulated area that was already there. Then along came Leif Eriksson and then Columbus on boats. A better description would be “How Europeans Came Across America”. This isn’t merely semantics. It has to do with ego and world view. If someone from Manchuria who never heard of you or America walked into your house and claimed it as his “discovery”, would he own it?
Similarly, the BRCA1 and BRCA2 genes were already there. True, they’re sited on chromosomes, but so what? All the company does is chew up those chromosomes and test for the genes. They didn’t change the genes to make them a different entity. If original (a big if, because it isn’t) the technique might be patentable. The genes themselves (and I don’t care a tinker’s damn what the two judges decided, because it’s illogical and incorrect) do not “belong” to Myriad, and never will. They clearly existed “in nature” just as Judge William Bryson opined.
"The court sided with Myriad, writing that the company's patents cover molecules that are markedly different and have a "distinctive chemical identify and nature" from molecules that exist in nature. Isolated DNA has been cleaved to make it just a fraction of a naturally occurring DNA molecule. “Thus, when cleaved, an isolated DNA molecule is not a purified form of a natural material, but a distinct chemical entity," wrote Judge Alan Lourie in the court's opinion. Judge William Bryson, dissented, and said that "extracting a gene is akin to snapping a leaf from a tree." – E.Walker, MedPage Today
I hope this case does go to The Supreme Court. The cure for so many diseases and so much suffering depends on it.
What do you think?
Source: http://www.medpagetoday.com/Genetics/GeneticTesting/27811