In general, I am weary of patents (see my Healthcare Manifesto and Against Intellectual Property posts). Sure, they may be useful to spur innovation, but they also harm innovation since one cannot modify or improve a product while there is still a patent. Further, patents generate rent-seeking where inventors spent tons of time wrangling to secure a patent and less time creating new ideas.
Thus, when I recently saw a 60 Minutes piece which explains that companies could patent genes, I was appalled. The story centers on a Myriad, a biotech firm with a patent over a gene which predicts breast and ovarian cancer. Now, I’m not a big fan of patents, but if they do exist, I agree with ACLU lawyer Chris Hansen who said “If Myriad develops a new drug, a new treatment, a new test, they can get a patent and they should be able to get a patent. What they shouldn’t be able to do is get a patent over the gene itself.”
Why does Myriad want to patent the genes? According to Forbes’ The Business of Science blog, it’s “purely about greed“.
The N.Y. Times reports, however, that the “Federal District Court in Manhattan ruled that the two genes were products of ‘the law of nature,’ and so could not be patented. The judge, Robert W. Sweet, declared that seven patents on the genes, held by Myriad Genetics of Utah, were not valid.” The title of this article is “Nature, 1; Company, 0,” but a more appropriate title would be “Liberty 1, Monopolies 0”.
You should check out Heidi Williams’ job market paper on the genome project and gene patents. Not quite the same setup, but it’s probably the research paper that gets closest to shedding some light on this issue.
The American Medical Association emphatically agrees with the Federal court’s decision to invalidate Myriad’s patents on genes linked to breast cancer. The ruling is a clear legal victory that prevents overly broad medical patents from harming patients’ access to care.
By staking claims on the BRCA1 and BRCA2 genes, Myriad exclusively controlled the use of these breast cancer genes when isolated from the human body. These patents gave Myriad a broad monopoly that hampered scientific discovery and medical care.
The AMA joined with other health care organizations in an amicus brief in this groundbreaking case supporting the position that genes are unpatentable products of nature, not discoveries of man.
The court’s decision supports the AMA’s deep belief that physicians should not be stifled in what care they can provide because a part of human biology has been patented. Medical discoveries that provide insight into natural human biology must remain available to all and exclusive to none.