THE STRATEGIC LAWYER

::.law + strategy.::.law + governance.::.law + politics.::. ::.you get the jist.::

Patents on Human DNA?

Q: How do you get to Dysopia?

A: One horrifyingly inexorable step at a time.

Okay, so maybe we’re not totally there yet. But there are times when I feel like we’re getting so close I can taste the soylent green from here.

In August, court of appeals for the the Federal Circuit in the US upheld a private corporation’s right to patent DNA sequences that represent two genetic mutations tied to hereditary breast and ovarian cancer. I suspect one would need a far more advanced understanding than I have of genetics to be able to opine on the full nuances of these patents and whether or not they encroach upon anything we should be worried about. But the ACLU, who in this case represent the Association for Molecular Pathology and College of American Pathologists among others, was apparently concerned enough to actually bring a case against Myriad, the corporation that is seeking to uphold the patent. If the patent holds, then it will mean Myriad holds a monopoly on testing using these particular genes (thereby allowing them to set prices and so on, of course), and that it will be able to preclude other tests that make use of the same genes.

Alarmist headlines aside, what is the significance of these particular sequences, and are they essential to the advancement of research? It sounds like we don’t need to be worrying about whether we’re going to be sued, Monsanto-like, if it is discovered that we happen to possess this  particular, mutated gene when we receive our cancer diagnosis (I really wish I understood the science of it better–it sounds as though the patented DNA has a “markedly different chemical structure” to DNA in the body, whatever that means. Nor do I have a strong sense of how these sequences would be used for testing, and how wide a scope of control upholding the patent would grant).

Certainly, there are repercussions to consider. The most important is: would granting a patent mean that the process of scientific advancement is being stalled, or at least choked, by being handed over to one company? It sounds as though this might be the case. Once again, the tension between rewarding money spent on scientific research (with an eye to profit) is coming up against that general desire to advance human knowledge and help cure ills.

Apparently, the majority at the Court of Appeal felt that the sequence was sufficiently isolated and artificial as to fall within the patentable range of constructs. The College of American Pathologists begged to differ (one would imagine that they might have some expertise), as did Judge William Bryson in his dissent.

The case has since gone up to the Supreme Court, which is set to hear the matter in spring of next year. And so, by sometime in 2013, we’ll be at the forking paths once again. I wonder which way we’ll go, and whether Dystopian horror is an inevitability (indeed, in looking at a lot of the biomedical stuff going on these days, one can be tempted to wonder whether it’s a matter of Dystopia Now and I’m just being self-delusive in imagining we’re not quite there yet).

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This entry was posted on December 1, 2012 by in Bioethics, Patent, Rights, Scientific Innovations and tagged , , , .
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