Ownership stakes

"Ownership stakes" Continued...

Issue: "Crackdown," July 18, 2009

Taking that theme to its legal extreme, the ACLU is arguing that gene patents violate the Constitution, which otherwise allows "inventors" rights over their "discoveries." Because Myriad's patents cover naturally occurring genes and mutations-and even govern the act of looking at two genes and comparing differences-the lawsuit claims the U.S. patent office's policy is unconstitutional and restricts freedom of speech by permitting "the patenting of products of nature, natural phenomena, abstract ideas, and basic human knowledge and thought."

The University of Utah Research Foundation is owner or part owner of the BRCA patents. The foundation's directors are named as co-defendants in the suit, including Thomas N. Parks, the vice president for research at the university. Parks told me that technology developed at the University of Utah was the basis for Myriad's BRCA1 and BRCA2 licenses: "The university is contractually obligated under these licenses to permit Myriad to use them commercially."

Myriad declined to comment on the pending litigation. However, in a PBS documentary that aired last October, In the Family, Myriad co-founder Skolnick defended his company to the film's director Joanna Rudnick, herself a BRCA1 mutation carrier: "If we make this huge multi-tens-of-million-dollars investment in educating the market, don't we have a right to deliver the tests? The facts are that women are getting tested, and their lives are getting saved, and I guarantee you they would not be being tested if it weren't for Myriad. . . . We've taken every [technical] problem that comes up and solved it because we have a commercial interest."

When Rudnick asked why Myriad's BRCA sequencing test was still so expensive, Skolnick hesitated, then said, "That's a good question. And I think there's a point at which we have to start looking at decreasing the cost of the test."

Skolnick denied that patents affected the ability of scientists to conduct research, but a 2005 report by The National Academies, a premier science group in the United States, suggests otherwise. The report included a section on Myriad's patent history and concluded that some DNA-based patents might be stifling scientific discovery.

It encouraged owners of "gene-based diagnostic tests" to allow outside parties to validate test results. If such owners were uncooperative, the report encouraged Congress to take action to protect researchers conducting validation from patent infringement liability "in the interest of public health." (Subsequent congressional attempts at patent reform were unsuccessful. Current reform bills are now awaiting action in the U.S. House and Senate.)

Officially opposed to DNA patents since 1995, the Southern Baptist Convention issued a statement supporting the ACLU's position, albeit with a different premise. Richard Land, the president of the convention's Ethics & Religious Liberty Commission, told me that patenting animal or human body parts, tissues, or gene sequences is an attempt to wrest their ownership from God and commodify them: "It's sort of a high-tech biomedical slave auction."

Land said, "My response to those who would say, 'Well, we invented this'-is go get your own genes."

Daniel James Devine
Daniel James Devine

Daniel is managing editor of WORLD Magazine and lives in Indiana. Follow Daniel on Twitter @DanJamDevine.


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