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.
The 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.