The Supreme Court has been in the news a lot recently after hearing high-profile gay-marriage cases. But a little-noticed case that comes before the high court in the next week carries huge ramifications for medical research.
A research company called Myriad Genetics is currently defending its right to patent human genes — strands of DNA scientists have identified and isolated. The genes at issue have strong correlations to breast and ovarian cancer. Myriad’s patent, which the U.S. patent office has upheld, grants the company exclusive rights to conduct research and develop medical solutions using these isolated genes.
Myriad’s challengers in court contend that genes cannot be patented because they were not created, only isolated from the body. Patent law states that a product of nature cannot be patented. In other words, anything that is produced by nature or the human body is not eligible for copyright. Myriad claims that the process of isolation is so complicated and difficult the produced strand of DNA is in effect a human product, and therefore patent-eligible.
The case raises numerous questions. The most important is: which ruling will produce the best results for cancer victims? Myriad claims that patent laws provide an economic incentive to search for medical breakthroughs that lead to more effective treatments. Opponents point to Myriad’s ability to prevent other research on the genes — although the company has not done so to a serious extent — as well as the fact that Myriad’s monopoly on testing for the genes has resulted not only in many faulty tests with no alternative options but also in tests being more than 1000 percent more expensive to patients than they are to Myriad. Myriad’s defensiveness is understandable given its massive financial investment in finding the genes, but the negative consequences of lack of testing options and high costs for patients, as well as the company’s shaky legal argument, show that the Supreme Court should revoke Myriad’s exclusive rights to the genes.
From a legal standpoint, Myriad’s argument is flimsy. By isolating the genes, Myriad is not creating a new product but instead removing part of the body. It’s as if Mott’s Apple Juice cut off an apple from a tree and tried to patent the apple. The amount of effort and skill needed to cut out a specific gene is obviously far greater, but effort and skill are not protected by copyright law. If Myriad had recombined DNA to create a new, operable gene or treatment, such a gene would be eligible for copyright. But the amount of money and time invested in the identification of those genes does not entitle Myriad to exclusive rights to their use in research and product development once others can identify them.
On the more practical side, the use of medical research and products for profit can often be an impediment to progress, cures and effective treatments. Barry Marshall, a former University professor, discovered a low-cost cure for stomach ulcers in the early 1980s. Marshall’s research was widely dismissed and ignored, partially because drug companies were making enormous profits on medications that simply treated the symptoms of ulcers, and therefore were used continuously by patients and generated sales. For more than a decade, the vast majority of people with ulcers were paying large amounts of money for patented medications rather than using Marshall’s simple cure. When the patents finally ended on the ulcer drugs, Marshall’s research was finally able to achieve recognition, and he won the Nobel Prize in medicine.
Are these situations different? Of course. But the principle remains the same. The desire of medical research companies to maintain the status quo when they have a monopoly on a treatment that generates revenue discourages further innovation in treatment techniques. It also leads to huge costs for medication due to a lack of economic competition. Myriad could not charge $3000 for tests that cost $200 to perform if the company faced competition. Allowing companies to compete to produce better and cheaper products is in the best interest of patients, and in this case is also consistent with copyright law. The Supreme Court should rule in favor of the free market to open up more opportunities for medical advancement.
Forrest Brown is an Opinion columnist for The Cavalier Daily. His columns run Thursdays.
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