Owning Ideas: How Can You Own a Gene?
What do Angelina Jolie, Breast Cancer Screening, and the Myriad Genetics Case Have in Common?
In May, actress Angelina Jolie stunned the nation when she revealed she had undergone a preventative double mastectomy (if you stood in a supermarket checkout line that week, you probably saw this cover of People magazine). Mastectomy (the surgical removal of breast tissue) is used as a treatment for breast cancer. As Jolie revealed in a thoughtful op-ed in the New York Times, her mother had died of the disease, and a genetic screening showed that she was at high risk for developing breast cancer herself.
Angelina Jolie’s frank discussion of her treatment brought to the attention of many Americans a simmering issue that finally came to a full boil over the summer, thanks to an important Supreme Court case. As Jolie noted, the cost of her genetic screening was around $3,000, too high for most women at risk. The price was due, in part, to a series of patents held by the Utah biotechnology company Myriad Genetics. This included patents Myriad held on two human genes, BRCA1 and BRCA2, believed to be instrumental in the development of breast and ovarian cancer. Myriad’s patents were challenged by a group of medical professionals and institutions, and in June the Supreme Court, in a unanimous decision, ruled in Association for Molecular Pathology v. Myriad Genetics that Myriad’s patents – in fact, almost all patents on human genes – were invalid (you can read about the case here; here’s the full text of the opinion).
For many, the idea of a gene patent seems absurd; having a gene patent looks dangerously close to owning “the stuff of life”. The Court’s decision turned on esoteric issues in patent law, and much discussion focused on abstract questions about “owning” genes (here’s an example). Perhaps the most important issues raised, however, concern the effect of the ruling on biomedical research and access to medical care. Many heralded the decision as a victory for patient’s rights, and there’s no doubt that – in the short term at least – the ruling should bring down the cost of procedures like screening for the BRCA genes. The long-term financial effects on the biotechnology industry may not be so bright. Small biotech start-ups may have trouble attracting investment, and the lack of patent protection on genes may lower the profitability of biomedical research on genes, in a way that has a negative effect on that research and the subsequent development of new medical technologies.
The key word in that last sentence is “may”. There’s no reason to believe this will happen; the point here is only that the situation is still evolving. Short-term gains in access to medical care may be offset by long-term costs, in the form of lessened investment in developing new medical technologies...or they may not. Whatever the result, the Myriad case is a watershed moment in the evolution of the institutional framework of biotechnology, and a vivid illustration of the ways in which obscure issues in intellectual property law and policy affect our health and well-being.