This central question emanated during a case that involved Association of Molecular Pathology versus Myriad Genetics. These lawsuits, organized by American Civil Liberties Union representing several other professional organizations were opposed to human gene patents (ACLU, 2013). Patent law sounds arcane but in this case, it affects huge investments in terms of billions of dollars channelled to research. The plaintiffs wanted to invalidate human gene patents based on a number of reasons. They believed that these patents impeded valuable research.
The Association for Molecular Biology argued that approximately 20 per cent of human genome is patented and due to this reason, scientific research has either been delayed or stalled because of the concerns on the same patents. Therefore patenting a gene impeded further research development of the same. For instance if a scientist wants to work or replicate a gene of study, it becomes difficult since it violates the patent (Faunce, 2005). Furthermore, genes should not be patented because of the difference that exists between inventions and laws of nature. Laws stipulated in the issuance of patents protect inventions rather than the discovered things (ACLU, 2013). Myriad Genetics and its stakeholder should patent the technologies they are using to discover genes rather than the genes themselves. A common denominator in this argument is that the genes have long existed in human body and no one can claim to possess them.
On the other hand, Myriad’s BRACAnalysis, which is a genetic test, remains patented. This helps determine a person’s susceptibility to breast and ovarian cancer. Private insurance providers such as Medicare and Medicaid have reimbursed the test. This is because the test offers the patient with the chance of understanding the susceptibility to both cancers. The Supreme Court got it right in making the ruling on this contentious issue (Richards & Hawley, 2011). DNA as a molecule exists naturally in human body and no patent should be issued to impede the free exchange of ideas (ACLU, 2013). The statutes under the Supreme Court disregard issuance of patents to a product of nature, which is to mean that nature should not be patented. By patenting the two genes BRACA 1 and 2 genes is hampering the research and this made Myriad have a 20 year monopoly on the two genes. However, Myriad came to its defence arguing that there have been more than 10,000 papers on the two genes.
The downside of this argument is that some researchers have argued that Myriad has in no way blocked their research; however, they are mindful that at one point Myriad could terminate their work (Faunce, 2005). This is because the information they have cannot be shared with the patients. From the patents, patients still cannot obtain a second opinion on the two genes. Myriad on the support of patenting the genes it discovered, argued that it took huge investment in time and resources to identify the two genes (Richards & Hawley, 2011). The justification of the court on the non-patenting of the two genes holds water because the company did not create them. Justice Thomas, the presiding judge in the case, argued that the order of the genes or rather nucleotides existed even before the innovative and brilliant discovery. Isolating the gene from the rest of human genome lead to no invention but the judge appreciated this to be a ground-breaking discovery( ACLU, 2013).
ACLU (2013, June 13). Association for Molecular Pathology v. Myriad Genetics | American Civil Liberties Union. Retrieved October 2, 2013, from https://www.aclu.org/free-speech-technology-and-liberty-womens-rights/association-molecular-pathology-v-myriad-genetics
Faunce, T. A. (2005). Pilgrims in medicine: Conscience, legalism, and human rights : an allegory of medical humanities, foundational virtues, ethical principles, law and human rights in medical, personal, and professional development. Leiden: Brill.
Richards, J. E., & Hawley, R. S. (2011). The human genome: A user's guide. London: Academic Press/Elsevier.