USA: the legitimacy of the patentability of genes re-examined by the Supreme Court

Publié le : 23 April 2013

On Monday 15 April, the American Supreme Court held a hearing with the supporters and opponents of the legitimacy of patents taken out on human genes. Its origin was a ruling by an appeal court which, in 2011, "confirmed […] the right of the Myriad Genetics company to patent the BRCA 1 and 2 genes whose hereditary mutations strongly increase the risk of developing breast and ovarian cancer." In the world of research, within the medical community and among patients, this decision aroused many objections and in March 2012 the Supreme Court of the United States instructed the appeal court to re-examine its ruling. 

Sandra Park, one of the lawyers of the American Civil Liberties Union (ACLU), which opposes this patentability with the Public Patents Foundation (PPF), points out: "Our case is based on a ruling of the Supreme Court dating back 150 years, according to which the products and the laws of nature cannot be the object of patents." She adds that "the fact of extracting a gene from a cell to isolate it does not constitute an invention in itself and it belongs to the category of products of nature, like any other part of the body." As regards MyriadGenetics, the lawyer emphasises that this company "did not invent the intrinsic qualities of these genes in the same way as a surgeon who removes a kidney to transplant it is not the creator of this organ."
Joseph Stiglitz, Nobel prize-winner in Economics and professor at Columbia University, New York, these two patents taken out by Myriad Genetics are "an obstacle to the development of other medical tests and also to fundamental research." And Sandra Park confirms: "Myriad Genetics, on the strength of its exclusive patent, is opposed to allowing these genes, essential for carrying out research, to be isolated by other researchers" to be studied. Moreover, if Myriad Genetics holds these patents, other researchers cannot "develop competing tests that are potentially more effective […] to determine if a woman is a carrier of the mutations that predispose her to breast and ovarian cancer."
Currently, nearly 20% of the 24,000 or so human genes are covered by patents which are "sometimes owned by private companies but also by universities and research institutes anxious to keep them in the public domain to prevent companies from getting hold of them."

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