Somebody is taking out patents on our genes.

An article in the New York Review of Books, “Can They Patent Your Genes?” by Daniel Kevles, details the case to be heard in spring 2013 by the Supreme Court which involves patents taken out by the Myriad Genetics Corporation on two genes implicated in breast and ovarian cancer, BRCA1 and BRCA2. The patents entitle the owner of the patent, Myriad, to exclude everyone else from using these genes in breast cancer research, diagnostics and treatment.

Plaintiffs include medical geneticists, pathologists, advocates for women’s health, genetic counselors, biomedical researchers and others. In addition to Myriad, defendants include the University of Utah Research Foundation and the United States Patent and Trademark Office.

The National Cancer Institute explains:

“BRCA1 and BRCA2 are human genes that belong to a class of genes known as tumor suppressors. Mutation of these genes has been linked to hereditary breast and ovarian cancer.
A woman’s risk of developing breast and/or ovarian cancer is greatly increased if she inherits a deleterious (harmful) BRCA1 or BRCA2 mutation. Men with these mutations also have an increased risk of breast cancer. Both men and women who have harmful BRCA1 or BRCA2 mutations may be at increased risk of other cancers.”

The NY Review of Books article “Can They Patent Your Genes?” explains in detail the origin and uses of patents in general, as well as the legal issues surrounding patents on naturally occurring objects and/or natural laws.

Kevles explanation here is well worth a length quote:

“these exclusions from patent eligibility came to be explicitly articulated in a body of federal court decisions holding, for example, that natural elements taken from the earth, even if they had to be chemically isolated from other substances, did not constitute patentable subject matter under Section 101, if only because they were not new.

Nevertheless, in the 1980s the PTO began issuing patents on DNA—not DNA in the body, which was indisputably a product of nature—but on three different versions of DNA isolated from the body. Scientists call one of them “complementary DNA,” or cDNA. In a gene, only some of the base pairs in the sequence along the double helix are “expressed”—that is, they prompt the production of some of the amino acids that the cells then assemble into the body’s proteins. The rest of a gene’s base pairs—which make a large majority of them—are not expressed. cDNA is constructed of only the expressed base pairs organized in the same order as they occur in the native gene, omitting the rest. The other two patented versions of DNA comprised isolated fragments or the whole of the raw DNA in a gene. Myriad’s patents extended to all three types of DNA extracted from the two BRCA genes.”

Kevles goes on to enlighten the reader on the legal twists and turns used to take out a patent on genes. Although that reasoning is outside the scope of this LSW post, it is worth wading through to see how capitalism twists its legal system into Mobius rings in order to expand its region of operations. Meaning that the LSW finds patents on genes and the subsequent ownership of gene uses, to be another charge with a finding of guilty on a long rap sheet recording capitalism’s amazingly onerous crimes against humanity. Just to make that clear.

“Myriad’s patents are sweeping, covering both the corrupted and normal versions of each isolated form of BRCA DNA and all mutations and rearrangements within them, including—by implication for the BRCA1 gene and explicitly for the BRCA2 gene—those as yet unknown. They also encompass every conceivable use of the three types of DNA, including diagnostics, therapies, drug development, and the identification of other cancers involving either of the genes.

The patents gave Myriad a virtual lock on research and diagnostics on the workings of the BRCA1 and BRCA2 genes because, for the most part, such research and diagnostics required analysis and manipulation of the DNA in isolated form”

Myriad’s patents can be used to prevent patients from receiving the results of their diagnostic tests, to make the tests so expensive that patients can not afford diagnostic tests, and to prevent patients from seeking a second diagnostic opinion. Myriad thus inhibits research as women are not willing to participate in trials where the results will not be available to them.

Myriad has blocked research on the BRCA genes by several scientists. It has blocked the development of comprehensive risk tests.

The article follows the case against these patents along its path through the Federal courts and Court of Appeals up to the Supreme Court which at first threw it back to a Court of Appeals and then:

“On September 25, 2012, the plaintiffs asked the Supreme Court to review the Court of Appeals’s August decision and on November 30 the Court accepted the case, confining its review solely to the fundamental question of whether genes are patentable.13 Its decision will determine whether the narrow or expansive interpretation of the law will apply to human DNA.”

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