The U.S. Supreme Court will hear a case this week regarding whether human genes can be patented.
This unusual case comes after Myriad Genetics, a diagnostic testing and research firm in Utah, patented specific human genes for research. The genes are technically genetic mutations, called BRCA1 and BRCA2, and are considered by scientists to be associated with a higher risk of breast and ovarian cancer.
The patents on the genes has allowed Myriad Genetics to develop tests that have helped over one million patients identify risky genes and start pre-emptive treatments in order to avoid getting cancer. However, the American Civil Liberties Union and the Public Patent Foundation argue that the monopoly the business holds over these genes has stunted scientific innovation and blocked access to other scientists and doctors attempting to provide medical care to patients.
The lawsuit also claims that the patent has blocked thousands of women from getting more accurate screening tests. Other laboratories have attempted to offer extra testing of the genes for patients, but Myriad has threatened to sue the labs for violating their patents.
“Myriad has a monopoly on clinical testing of its genes in the US, dictating the type and terms of BRCA genetic testing,” wrote ACLU lawyer Christopher Hansen in his brief to the court.
The debate will focus on the legality of patenting human genes — genes that the scientists, try as the might, did not invent — for the sake of protecting scientific research.
Patents are protected by federal law and function to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” according to the Article 1, Section 8 of the Constitution.
Myriad argues that although the genes are created in nature, their patents are valid because of the extraction process, which does not occur in the natural world.
Hansen vehemently disagrees, however, arguing that just because the company takes the gene from a human, it does not mean it becomes a scientific invention.
“Under this rationale, a kidney ‘isolated’ from the body would be patentable, gold ‘isolated’ from a stream would be patentable, and leaves ‘isolated’ from trees would be patentable,” he said in his brief.
The Supreme Court will start hearings for this case on Monday.