Wretches and Genes: We Come For You

On the other hand, the justices also stated that cDNA – a reverse engineered synthetic copy of the gene – can be patented. In writing the courts opinion, Justice Clarence Thomas stated that DNA manipulated in the lab is patent eligible, since it is markedly different from its natural state.

Made famous by the double mastectomy of actress Angelina Jolie – who would have made headlines by clipping her toenails since her name is Angelina Jolie – the BRCA ½ genes are the genes identified to be the main cause of hereditary breast cancer or ovarian cancer. They are key in genetic testing to assess if patients are at risk and whether or not patients should take preventive measures, as did Jolie.

The American Civil Liberties Union (ACLU) and the Public Patent Foundation – representing more than 20 plaintiffs – filed suit in 2009, in protest of Myriad’s monopolization of the use of BRCA ½ genes and of commercial practices regarding gene patents as a whole. Myriad first claimed ownership of the genes in 1994 and 1995, collaborating with the University of Utah (to which Myriad’s cofounder Mark Skolnick belonged) and the National institute of Environmental Health Sciences. Its patents cover the isolated gene sequences and methods to analyze and compare these genes in order to determine the susceptibility of female test takers to breast cancer. The comprehensive BRCAAnalysis test established in 1996 made Myriad $326 million in molecular diagnostics in 2009, due in part to the near doubling of the test price from $1600 (1994) to $3150 (2009).

With the patent being exclusive, Myriad can charge at risk patients whatever price it wanted while other entrepreneurs cannot sell cheaper tests, regardless of the application of different methods and technologies in the testings. Myriad’s stance also inhibited patients looking to get a second medical opinion. Doctors argued that their ethical obligation to their patients was compromised as they were not allowed to tell women the test results.

The use and abuse of gene patents also affects the state of scientific research as a whole. When the SARS epidemic was spreading on a global scale, researchers studying the disease were hesitant in doing their job because of patent concerns and the entailing risks of litigation. At least for these researchers, it seems lawyers are more of a threat than a global pandemic could ever be. In a post ruling review, Lori Andrews, director of the Institute of Science, Law and Technology at the IIT Chicago-Kent Collage of Law stated, “prior to the Supreme Court decision, 53% of genetic labs had stopped doing research due to concerns about gene patents. 49% of American Society of Human Genetics members had to limit their research due to gene patents.”

The verdict was handed down and the ACLU declared victory. However, I felt hesitant to celebrate just yet, and not just because of my skepticism towards the Supreme Court, who declared that racism is no more just before the acquitting of George Zimmerman and the Paula Dean scandal. If Myriad had suffered a crushing blow to its business it did not act like it did. In fact, it stated in a press release, “following today’s decision, Myriad has more than 500 valid and enforceable claims in 24 different patents conferring strong patent protection for its BRACAnalysis test.” Joined by the University of Utah, the University of Pennsylvania, Ontario’s Hospital for Sick Children and Endorecherche Inc., Myriad launched a new set of law suits against companies such as Ambry genetics (who charged $2200 for their BRCA tests) and Gene by Gene Ltd. (charging $995 for theirs), claiming the infringement of its upheld patents.