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A gene patent is a dodgy concept; genes can’t be patented –that’s right– natural genes can’t be patented; they simply cannot be patented. An analogy will serve as an example: when a company makes a map of the river Thames, the company is the rightful owner of the map; the company made an investment and took the time to produce the map; it may seek monetary compensation from people that want to use the map. The river Thames, however, remains property of the British people. They can still fish and sail, swim and drink (if they dare), enjoy and do whatever they did before, in the river Thames.

DNA helix, biochemical  background with defocused strands, eps10The difference between a map of the river Thames and the river Thames itself holds for genes. Your genes are yours; nobody can claim ownership over them and nobody can claim ownership over natural genes or the concept “gene”.

Most people will agree that the idea of Intellectual Property is a fundamental part of a modern society. For this reason, they will not contend that a company claiming rights over its own map of the river Thames -or exercising these rights- is evil. However, there are groups that will assert that if the map is useful to society -no matter who made it- it should be expropriated and collectivised.

The name “gene patent” may derive from a successful campaign against what should rather be called “patenting of genetic inventions”. An example of this campaign could be the media coverage of the case Myriad v AMP (see a classic example at The Guardian). Conscious or unconscious anti-capitalist zest dislikes property and progress; few people would support its agenda. Therefore, opponents of Intellectual Property must fabricate moral conundrums or apply scaremongering tactics to lure the public (and dupe journalists) into their lair; they coin slogans of the type “evil companies such as so and so are after patenting (YOUR) genes” as if you would have to pay royalties to Myriad to use your own genes.

Myriad holds the rights to use the sequences of two genes in diagnostic tests. In 1994, Myriad and its partner, University of Utah, discovered that there was a connection between mutations in two genes (named BRCA1 and BRCA2) and ovarian and breast cancer. They made an invention and they claimed property over it. You can rest assured that nobody but you own your BRCA genes.

Detractors of “patenting genes” also claim that these patents impair future research; this is a very loose statement. In many countries -such as some European countries and Japan- Intellectual Property rights do not even apply to research. Almost every modern technique used in research laboratories is under a patent and research is still thriving. Of course, if you want to make money out of your research with BRCA genes you may have to buy a licence from Myriad; but business is business, right?

More examples of Myriad not owning the actual genes: the sequences of the BRCA genes can be found and downloaded for free here: genome.ucsc.edu (BRACA1) and genome.ucsc.edu (BRACA2). Many companies sell BRCA-related products -such as antibodies- and you can even buy DNA with the BRCA sequences, for example, in GeneCube. Myriad doesn’t own the DNA. You can also sequence your BRCA genes or your entire genome if you want; they are yours!

The US Supreme Court will soon decide in the case Myriad v AMP. Myriad’s patent might be valid or invalid because of technicalities (how it was written, etc.) but -owing to the media coverage- the decision of the Supreme Court will sound like an ideological stance. If it rules against Myriad, it will be very tough to convince investors of supplying capital for biomedical research in the future (without Intellectual Property they will not get much out of their investment). It might be a win for people that want to use already developed genetic test for free and for those who dislike Intellectual Property; in the long run it may be a lost to all of us.

 

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  • LinkedIn memberAG 09/06/2013 at 3:09 pm

    I think the majority of these issues will be resolved when exome testing becomes the norm and SNP testing or Sanger-type sequencing becomes passe. Yes, Myriad did show a very high correlation of breast cancer with BRCA1/2 and they have patented the process of Sanger sequencing for this region of the genome. As next-generation sequencing evolves, these issues will sort themselves out fairly quickly.

  • LinkedIn memberMK 08/06/2013 at 8:09 am

    I think the Myriad story is a wake up call for molecular biologists the world over. The real issue here is this. Can simply sequencing a gene entitle you to own the gene? The answer by all molecular biologists worth their degree is of course, NO! If you optimized a gene sequence, created variants to the sequence, modified gene-to-function or even improved functionality of the natural gene, created kits for detection and measurements, by all means patent them. But the idea that one can patent, say cytokine A natural sequence (which in all likelihood is nearly identical in most of us) is simply nuts.

    • Ariel Poliandri 08/06/2013 at 8:20 am

      I think you are confusing things here. Myriad did more than sequencing the genes. They found an association between those genes and two particular forms of cancer. That is not trivial. It was still less trivial in the early 90s. You didn’t do it; Joe Molecular Biologist didn’t do it; they did it.
      With hind sight is way too easy to say that a discovery is trivial: PCR seems an obvious concept now. By the way PCR is under a patent. Do you know of anybody whose research was stopped by that patent?
      Myriad does not own the genes. You can sequence your BRCA genes as many times as you want to and post the sequences in Facebook, if you fancy doing so. What you cannot do is selling third parties kits for detecting BRCA mutations associated with cancer. Or in fact you can do that as well, but you’ll have to pay for a licence.

  • Mike 07/06/2013 at 7:11 pm

    Oh come on! Your argument is preposterous! Myriad did NOT create BRCA! They simply used a patented technology (sequencing) to DETECT a NATURAL variant of a gene! Big frigging deal!!!! They cannot OWN BRCA, and any therapeutics that may be developed simply becauae they sequenced the darned gene first! They can ONLY own patents for, say, the first test for detection of the variants, etc. They MUST not be able to stop other to find a cure for it, or even EXPECT royalties for this….they didn’t do crap!

    • Ariel Poliandri 08/06/2013 at 7:50 am

      Mike, I SAID quite clearly that MYRIAD DOES NOT OWN BRCA. What post were you reading? I said they don’t own the BRCA genes and nobody can own a gen. I said they were the first to find an association between BRCA and breast and ovarian cancer and that it is fine for them to own the rights to ovarian and breast cancer test using that knowledge.
      You say that they were the first to “sequence the gene”. They did much more than that: they found the association (and that was not simple in those days) and developed the test.
      With hind sight is very easy to say that a discovery is simple. How didn’t I invented the PCR is so obvious?!
      Now, if the tests are ridiculously expensive or Myriad is an evil company, that’s got nothing to do with the patent and is an issue for the fair trade office not for the Supreme Court.

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