Appeals court rules that corporations can own genes: they just keep piling on the woe for the "lower" 95%

Remember the case of the corporation taking out a patent on one of the genes for breast cancer? In the Psychotic Congressional Drama of the last week, you might have missed the report on the Appeals Court ruling. Here's the July 29 press release by the American Civil Liberties Union:

NEW YORK - July 29 - In a 2-1 decision, a federal appeals court today partially reversed a lower court’s ruling in a case challenging patents on two human genes associated with hereditary breast cancer and ovarian cancer. The court ruled that companies can obtain patents on the genes but cannot patent methods to compare those gene sequences.

The ruling follows a lawsuit brought by a group of patients and scientists represented by the American Civil Liberties Union and the Public Patent Foundation (PUBPAT) and calls into question the validity of patents now held on approximately 4,000 human genes.
“Today’s ruling is a blow to the idea that patent law cannot impede the free flow of ideas in scientific research,” said Chris Hansen, a staff attorney with the ACLU Speech, Privacy and Technology Project. “Human DNA is not a manufactured invention, but a natural entity like air or water. To claim ownership of genetic information is to unnecessarily block the free exchange of ideas.”

The lawsuit against Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the genes, charged that the challenged patents are illegal and restrict both scientific research and patients’ access to medical care, and that patents on human genes violate the First Amendment and patent law because genes are "products of nature."
“As the dissent from today’s decision explains, pieces of the human genome are not patentable,” said Daniel B. Ravicher, executive director of PUBPAT and co-counsel in the lawsuit. “This is because no one ‘invents’ genes. Inventions are things like new genetic tools or drugs, all of which can be patented because they are not genes themselves.”

The specific patents the lawsuit challenged are on the BRCA1 and BRCA2 genes.

Mutations along those genes are responsible for most cases of hereditary breast and ovarian cancers. Many women with a history of those cancers in their families opt to undergo genetic testing to determine if they have the mutations on their BRCA genes that put them at increased risk for these diseases. This information is critical in helping these women decide on a plan of treatment or prevention, including increased surveillance, preventive mastectomies or ovary removal.

One of the judges on the panel dissented in part with the decision, writing that patents on the genes should be invalid. “…[E]xtracting a gene is akin to snapping a leaf from a tree,” Judge William C. Bryson of the U.S. Court of Appeals for the Federal Circuit wrote. “Like a gene, a leaf has a natural starting and stopping point. It buds during spring from the same place that it breaks off and falls during autumn. Yet prematurely plucking the leaf would not turn it into a human-made invention.”

The lawsuit, Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., was filed on behalf of breast cancer and women’s health groups, individual women, geneticists and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals. Because the ACLU's lawsuit challenges the whole notion of gene patenting, its outcome could have far-reaching effects beyond the patents on the BRCA genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer's disease, muscular dystrophy, colon cancer, asthma and many other illnesses.

The patents granted to Myriad gave the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad. Myriad's monopoly on the BRCA genes makes it impossible for women to access alternate tests or get a comprehensive second opinion about their results. It also allows Myriad to charge a high price for its tests.
“The court has made the wrong decision for a women’s health,” said Sandra Park, staff attorney with the ACLU Women’s Rights Project. “No corporation should be able to claim ownership of a woman’s own genetic information.”

Several major organizations, including the American Medical Association, the March of Dimes and the American Society for Human Genetics, filed friend-of-the-court briefs in support of the challenge to the patents on the BRCA genes. In addition, the United States Department of Justice filed a brief arguing that many of the gene patents issued by the Patent Office are invalid.

Attorneys on the case include Hansen and Aden Fine of the ACLU Speech, Privacy and Technology Project; Park and Lenora Lapidus of the ACLU Women’s Rights Project; and Ravicher and Sabrina Hassan of PUBPAT.

Today's decision can be found online at:
www.aclu.org/womens-rights/association-molecular-pathology-et-al-v-myriad-genetics-inc-appeals-court-decision


More information about the case, including an ACLU video featuring breast cancer patients, plaintiff and supporter statements and declarations and the legal complaint, can be found online at: www.aclu.org/brca

Talent, Genius, and Genes

In a piece for the Observer, Robin McKie asks David Shenk a few questions anent Shenk's The Genius in All of Us (link thanks to oursin). McKie begins:

Talent is like the marksman who hits the target others cannot reach; genius is like the marksman who hits a target others cannot even see. Thus Arthur Schopenhauer defined the concept of genius – as a gift displayed by semi-mystic beings whose innate qualities sets them apart from other mortals. Mozart, Einstein, Newton, George Best: all were blessed by their genes and achieved a greatness that the rest of us cannot hope to possess.

Shenk's book takes issue with the gift being "innate" and argues that the amount of work that one does has everything to do with being great at what one does.

McKie: Most people look at child geniuses like Mozart and conclude that his gifts had to be the result of fortuitous genes. Presumably you disagree?

Shenk: Every piece of evidence we have about how genes work, how brains work, where musicality actually comes from, are consistent with the idea that there is nothing that mysterious about Mozart. I am not trying to diminish his achievements, of course. But the more you look at his life, or the life of any other genius, you realise that this was a process. He reacted to an environment that was almost uniquely perfect for moulding him into a child star.

The myth of Mozart's innate talent persists because people conflate different things in his life. We know he was interested in composing early on and we know he was a prodigy as a performer. The untrained mind reacts by concluding he was born that way. And that kind of reaction has been going for a century. Every time we are confronted with prodigious talent, we say it must be genes because we cannot think of any other explanation. In fact, in the case of Mozart, it is clear his upbringing was also remarkable in terms of stimulating his abilities.

The trouble is that this problem is getting worse. The more we read about new genes being discovered for human conditions, the more our belief in genetic determinism gets stronger. Yet the vast majority of geneticists would not want that to happen.

Oursin notes that Mozart's sister offers a point of comparison confirming Shenk's point. And of course Felix Mendelssohn's sister Fanny would be another. And maybe this would be a good place to allude to Virginia Woolf's famous speculation on "Judith Shakespeare" in A Room of One's Own?

I found this bit the most interesting, though, since it goes right to the heart of how the US educational system loads the dice:

Shenk: Our genes influence our lives, but equally our lives influence our genes. And I think that that has important implications. Certainly, in the US, we tend to quietly give in to the suspicion that some people are not as capable of being educated as others.

The thing is that if we decide that we need to do a lot more to exploit human talent, then we will all benefit. These things take resources, of course. But the overall message is clear. Our problem is not that we possess inadequate genetic assets but that we are suffering from an inability, so far, to tap into what we already have.

Few of us know our true limits and the vast majority of us have not even come close to tapping what scientists call our "unactualised potential".

Fatalism, I've always thought, is the most insidious form of despair. It's endemic here in the US. Does belief in "unactualized potential" sound utopian? Well, it is. But that doesn't make it impossible. (Only just improbable.)