We are all quite literally a product of our some 25,000 genes. But for years companies have been turning our genes into products, patenting them and keeping people from accessing their own genetic information. These patents on nature should never have been granted. A federal judge in New York last month finally acknowledged the mistake, invalidating a Utah company's seven patents on two genes tied to breast and ovarian cancer. The ruling has thrown the biotech industry into a tizzy, but the judge's reasoning is airtight. Private companies should not hold intellectual property rights on our genes.
The basic idea behind patents is that the inventor of something new should be able to exclusively profit from it for a set period of time, as a way to encourage investment in innovation. The U.S. Supreme Court, which is likely to get this case on appeal, has long held that a discovery within the natural world cannot be patented, a standard that should have protected the genome from being divvied up among private concerns. But that hasn't happened.
Over the last 20 years companies and academic researchers have isolated and patented about 4,300 genes, removing them from the public domain. The approvals are grounded in the view that isolating a gene changes the character of it enough to allow for a patent. But as Judge Robert Sweet said in his 150-page ruling, this is a "lawyer's trick." Sweet found that the essential defining characteristics of DNA are retained in both its native and isolated forms, meaning they are not markedly dissimilar enough for a patent.
If this ruling stands, it would greatly open up the field of genetic research and testing. A study by the American Society of Human Genetics found that 46 percent of respondents reported patents delaying or limiting their research.
The lawsuit itself is instructive of the barriers these patents have imposed. Friend-of-the-court briefs in support of finding genes unable to be patented were filed by the American Medical Association, the American Society of Human Genetics, the March of Dimes Foundation and a host of other medical and disease research organizations and health advocates.
Biotech firms argue that they need the patents to spur investment in study. But this is a red herring. There are all sorts of ancillary parts of genetic research that are subject to patent and hugely profitable. Instead, the ruling will be a boon to genetic science and public health. Competition in the field of genetic testing will bring costs down, giving access to more people to know what disease proclivities they carry.
Most people would assume that what is physically inherent in all of us cannot be owned by a corporation. That sense of human autonomy should be reflected in the law as well. No one should hold a monopoly on the stuff of life.