dna stairsFor years, it’s been legal to patent genes. You find a gene, study it, and decide you don’t want anyone else to be allowed to “use” the gene besides you? Go ahead and patent it. It may be in the DNA of 6 billion people (or trillions of mice, or untold numbers of yeast cells) but in the eyes of the USPTO, it belongs to you.

Finally, this is being challenged! The ACLU is suing Myriad Genetics, the company that holds the patent on two human breast cancer genes: BRCA1 and BRCA2.

“Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights,” said ACLU Executive Director Anthony D. Romero. “The government should not be granting private entities control over something as personal and basic to who we are as our genes.”

The lawsuit also challenges genetic patenting in general, noting that about 20 percent of all human genes are patented — including genes associated with Alzheimer’s disease, muscular dystrophy and asthma.

You read that right: 20 percent.

While generally “products of nature” can’t be patented, genes are fair game if you isolate the gene and specify what it’s used for. It’s also possible to get a monopoly on things like genetic tests, so that nobody else can provide a test for BRCA1, say, without licensing the technology from the patenter.

If you’ve got a patent on something interesting or useful, you get to be the only one to commercialize it, or you can license it to others for whatever fee you like. This is the whole idea behind patents – it grants the inventor a monopoly on their invention so they don’t have to worry about somebody else stealing the idea (until the patent expires in 20 years). The goal is to encourage innovation: go ahead and put in lots of work on your project, and you’ll be the only one who can make money on it for the first 20 years.

This system, invented centuries ago, arguably works pretty well. One of the early patents granted in Italy was for a barge that could carry heavy marble blocks. When the USPTO was formed, early patents included improvements on steam engine technology and printing presses.

Today, patents are still granted for machines and devices, but also for software, pharmaceuticals and – the thing that brings me here today – genes.

dna playground

In 1980, the US Supreme Court ruled in Diamond v. Chakrabarty that a genetically modified bacterium was patentable, thus opening the door to patenting other biological material, like genes and even whole mutant mice.

Which leaves you, the reader out there with the BRCA1 gene (we all have it; some versions are linked to cancer and some aren’t), the possessor of a copy of someone else’s patented material. Myriad isolated the gene and showed what it’s used for, so now they own it – even though it’s in your body, and everyone else’s.

[Dan Ravicher, executive director of the Public Patent Foundation and a patent law professor at Yeshiva University] offered an analogy to describe the plaintiffs’ argument, saying, “It’s like saying if someone removes your eyeball … just because you remove the eyeball and wash it off, that doesn’t make the eyeball patentable.

“Now if they create another eyeball out of plastic or metal, then you can patent that.”

The ACLU says that gene patents limit research and the free flow of information, and that the high cost of Myriad’s genetic tests ($3000) kept some patients from seeking testing that could have helped them. (Without a patent, other companies could have offered the test at lower cost.) The plaintiffs in the suit include patients and universities, genetic specialists, and medical associations. Here’s hoping they win.