Registering patents on inventions and other innovation is fairly common and accepted in today’s world, but what about patenting genes?
For a while, medical technology and products weren’t the only things up for grabs. Genetically modified organisms and genetic materials were also eligible for patents. However, the question arose: Should companies be allowed to patent naturally occurring materials?
In Japan, a gene may be patented only if it has commercial potential. Methods of treatment and disease recognition are not eligible.
In Europe, it is legal under specified circumstances. The gene must be isolated from its natural environment (taken out of the body), or the gene must be synthetic.
In the United States, a unanimous June 2013 Supreme Court decision ruled that DNA sequences are not eligible for patents. The case was “Association for Molecular Pathology vs. Myriad Genetics Inc.”
Myriad Genetics is a Utah-based company that branches off the University of Utah. The geneticists obtained patents on BRCA1 and BRCA2, important breast and ovarian cancer genes. Sequencing them to look for certain mutations can give women an idea of their risk for cancer.
However, Myriad was charging high prices for the tests and no other companies could offer it because Myriad held the patent.
In 2010, the patents were confiscated by a judge, claiming isolating a gene from the body did not make it patent-worthy. Myriad asked for an appeal and ended up getting the patents back.
The possibility of companies holding a lifetime monopoly in the genetics business through patents created a big concern. They could forbid other scientists to conduct any research regarding the genes unless they were paid first. This could seriously hinder scientific discoveries.
“I think the big issue is striking the balance between having some sort of financial incentive for private companies like Myriad Genetics to invest in gene discovery research and eventually having that knowledge becoming public property,” Jon Marshall, a genetics professor in the zoology department at Weber State University said. “If companies hold the patents indefinitely and monopolize that knowledge, economic factors could prevent lower income women from being able to afford the breast cancer test, developing the cancer, and it ultimately becoming a life and death issue.”
Other concerns involved bioethics. Does allowing genes to be patented violate human dignity? Should living materials be eligible for patent? Would patent owners be more interested in monetary profit than scientific discovery?
Weber State sophomore River Ward, a botany major, doesn’t think putting patents on genes is a good idea.
“It’s a difficult thing to really regulate,” said Ward. “If you’re putting a patent on a gene, where do you draw the line between what you created and what already existed?”
Such was also a concern of the court. In 2013, the court ruled that Myriad’s patents were no longer valid.
“Myriad did not create anything,” Justice Clarence Thomas wrote in the court decision.
Although naturally-occurring genes are no longer eligible for patents, artificial genes are. These synthetic versions, known as complementary DNA or cDNA, are created as a part of the process of gene sequencing. They have the same base pairs as the original DNA, the difference is that cDNA is not naturally occurring.