I heard the story on NPR this morning, and they reported it as if the Supreme Court had simply ruled human genes weren't patentable and that was that. It sounded like a blow to Myriad. I read the actual opinion, and there's a lot more to it than that. The Supreme Court said naturally-occurring genes aren't patentable, even in isolated form. They also explicitly said that cDNAs were patentable, and noted that the decision doesn't address new applications of knowledge about humans genes, or patentability of natural genes were the order of nucleotides has been changed. They also left open methods of use (i.e. if I isolate a human gene and develop a diagnostic method to it, I can patent that method and still have a "monopoly" on the diagnostic method). While news reports first cast it as a lose for Myriad, I'm not surprised to see that their stock went up after the ruling. The decision leaves a lot of room open for Myriad and others to make money off patents related to human genes in one way or another. I don't know about you guys, but I could see some very interesting stories related to all of this. They'd be science fiction, I suppose, though I bet you could make metaphors for it in a fantasy setting.
I haven't seen much about that particular story, but I've had the same thoughts about this mysterious runaway Monsanto wheat that was found in Oregon, even though allegedly Monsanto had destroyed all of this wheat years ago. Yet there it is, growing in Oregon. That scenario seems ripe with possibilities, too -- and not just for crops, but perhaps some sort of animal.
Agreed. Imagine the ruling going in the other direction and (at least in the country where the ruling is in force) parts of the existing natural genome could be patented. What if I owned the the patent to the chromosomal anomaly giving riser to Fragile X syndrome or pretty much any other malady arising from chromosomal anomalies. Would this mean that no one else could create a treatment for said malady without my say-so? I can see some plot devices coming into play there already. I can see how Fantasy could get its slice of that pie. Did you catch the BBC three-part miniseries, In The Flesh? Zombieism is a treatable ailment (ref the about comment I made about ailments) and the story is about how we deal with reincorporating them into society. The story is a clear metaphor for people living with HIV. Even the MC of the story is gay, which is a bit in the nose, but it makes the metaphor obvious.
The decision is a relief given the court seems to lean so heavily in the pro-corporate direction. I sincerely doubt it will have a dampening effect on research, rather it should have the opposite effect. There's still plenty of profit to be made with tests to identify the genes and medical interventions based on genetic science. But patenting a gene one discovered meant other researchers couldn't do research on that gene. It's really a bit creepy this patenting of genes that are naturally in the environment. There's an extensive discussion of the corporate overreach in this area discussed the book that NPR reviewed here: 'Deadly Monopolies'? Patenting The Human Body It's like patenting water, claiming you're the first to patent it therefore you have a right to do so. These genes were identified, not created. I'm glad the court saw it that way.
It was a product of early chemical patents. You can patent a naturally-occurring compound, assuming you are patenting the isolated form of it, which does not occur in nature. When gene patents started to come along, the patent office took a similar view (because genes are ultimately chemicals, and besides the patent office had a bunch of chemical engineers and no biochemists; when all you have is a hammer everything looks like a nail). Initially there may have been more merit to it, but nowadays isolating a given stretch of DNA is so routine that is can't really be said to be inventive.
Another interesting aspect of this - because Myriad did have a patent for something like 15 years, they now have a database that far exceeds the competition. The database is carefully guarded as a trade secret. So while other diagnostic tests are already popping up, it looks like for the time being Myriad's tests may be the best because of all the data they have to work with that others do not.
Myriad may well find itself the victim of ignored patent rights in the future. I am admittedly entering into a slippery slope argument here, but there is already a precedent regarding HIV medication. In both India and Brazil, patent rights applied for by Abbott were formally ignored in rulings courts for one of their HIV meds, allowing production of significantly less expensive generic versions of the their drug ritonavir (part of the drug combination found in their branded drug Kaletra). In Brazil the decision was against the revalidation of the drug while in India, the year prior, the patent was denied on grounds of "non-invetiveness", which again allowed for the production of generics. In both cases, it's hard to deny that the law is starting to take a different stance on patents where they would seem to block access to meds for the greater majority. HIV meds in their branded form are wildly expensive.
That's true, Wreybies. I suppose that sort of thing could happen to Myriad, though with respect to its actual gene patents in the U.S., those are history so they can't enforce them anymore. But with 15 years worth of trade secrets, it is a bit harder for competitors. Myriad won't be coming after them with a patent to enforce those specific pieces of intellectual property, but will instead benefit simply because they have the accumulated knowledge and their competitors do not.
