WHO OWNS YOUR GENES?

Nord Kap (northern Norway), 2004

The guy is a Sami (Laplander), and the beast is a reindeer.

He poses outside a small store that sells tourist stuff.

When we drove up he was smoking a cigarette and looking pretty un-Sami,

This post lies at the intersection of two of my more conspicuous channels of incompetence: biology and law.

I have confessed my biological failings previously, more than once.  As to law: I was admitted to Stanford law school during my junior year.  In spring quarter, to get up to speed, I took a business law course.  I did horribly!  I was dumb!   No matter how I tried, I just couldn’t think like a lawyer.  Thank God I found out in time!

So, anyway, in today’s (7/20/12) Wall Street Journal, p. A3, there is an article entitled “Court to decide whether genes can be patented”  It appears that an outfit called Myriad Genetics, Inc., is being sued  by, among others, the ACLU.  The suit made it all the way to the Supreme Court, which kicked it back to a lower court for review.  The eventual disposition of the case is not at all clear.

The Journal article confuses me.   Obviously nobody can patent a gene – we all have them, we always have had them, and I doubt if even Hitler or Kim Jong Eun could make us lease them from anybody.  I can’t figure out if what they have patented is “natural” – taken from a human being – or artificial – built up in a test-tube.  It appears that Myriad has a patent on the actual gene-thing, and not – as I perhaps could understand –the process of using it. Apparently the rule of thumb is that you cannot patent either a “natural product” or a “law of nature.”   So I used Google to dig a little deeper.

The genes in question are BRCA1 and BRCA2.  The BRCA part stands for breast cancer.  A woman with a mutation in either of these genes is significantly more likely to contract breast cancer than an equivalent woman with her BRCA genes intact.   The BRCA1 genes, and its significance, were discovered by an academic researcher at U.S. Berkeley in the late 1980s.  The BRCA2 gene and its function were discovered some time later, at U. Utah.  Still later it was discovered that the BRCA genes also function in ovarian cancer.  It should be noted that Myriad Genetics was founded in 1991 and participated in the research establishing the BRCA genes as bad guys.  Two of the founders of Myriad were academics, from the U. Utah and Harvard.  The latter was a Nobel Laureate.

Apparently Myriad cloned the BRCA genes, and uses them in their test for mutations.  The cost of such a test is said to be about  $3000, although Myriad insists that all but $100 will be paid by the patient's insurance company (assuming, of course, that she has one.)  The claimants in the court case says that, because of the patent, patients are prohibited from obtaining a second opinion – and, of course, with no competitors, there is no incentive for Myriad to reduce their price.  So, as my mother would have said – a pretty kettle of fish!

I don’t have any profound, or even well-informed, opinions on this matter.  Obviously you shouldn’t be able to patent a law of nature, but doesn’t it make sense to allow a patent on a means of using it to affect something or other of importance to human beings?  Drug companies spend tons of money on research.  Most drug start-ups lose money for years, but hang on in the hope that something or other will turn up.  Shouldn’t they be allowed to recoup their expenses, and even strike it filthy rich (on the grounds that truly filthy riches will inspire other smart biochemists to find, and be able to profit from, something else important?)  In an ideal world the government, or the Bill & Melinda Foundation, would amply fund pure AND applied research, and the drug companies would make their money by manufacturing & distribution, just like they prosper from toothpaste and mouthwash.  But in the world we live in the government is profligate in some areas, stingy in others, subject to politics – in other words, totally unreliable.  And even Bill and Warren and all the other rich philanthropists can’t close the gap.  That is partly why prominent academic biochemists form companies like Myriad. Why scrape by with a Harvard salary when you can form your own company, do the same research, and become – you guessed it – filthy rich?  So, is it wise to slap down Myriad?  It may stifle research there, and elsewhere.  Or maybe not.  What do you think?