Several U.S. Supreme Court justices expressed skepticism this week over whether companies can patent genes, during a hearing that could reshape the future of the biotech industry. The court heard arguments over patents held by Myriad Genetics on two human genes, which, when mutated, give a woman a higher risk of developing breast or ovarian cancer. The patents give the Utah firm a monopoly on testing for those mutations. A lawyer for Myriad said that voiding the patents would deter other scientists and investors from trying to make advances with natural materials. But Justice Elena Kagan questioned whether, under Myriad’s argument, a patent could be awarded to the “first person who found a liver.” And Justice Samuel Alito—a conservative—noted that while a company could patent the process used to extract a cancer treatment from a leaf, it could not “patent the plant” itself.
Granting these absurd patents is not in the public interest, said Marcy Darnovsky in the Los Angeles Times. Myriad’s strict patent enforcement “means its test is the only available one to determine whether a woman has a genetic variant that increases her risk of cancer.” Women can’t get a second opinion, even when facing a decision about removing a healthy organ to lower their cancer risk.
But without patent law, our lifesaving tests wouldn’t even exist, said Myriad CEO Peter Meldrum in USA Today. The research that led us to discover the synthetic molecules our test employs cost $500 million, an investment that took 17 years to earn back. If the Supreme Court decides a company can’t own its own findings, other biotech companies will not take risks.
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Companies like Myriad “deserve credit for the hard work involved with isolating genes,” said The Sacramento Bee in an editorial. But these genes are not true inventions, which is what patents are meant to protect. The court should remember what Dr. Jonas Salk said when asked if he had patented his polio vaccine. “There is no patent,” he replied. “Could you patent the sun?”
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