Dear Science,
With a federal court judge invalidating a corporation’s patents on BRCA1 and BRCA2, will this lead to more or less innovation in the field? Specifically, are broad patents on genetic code hindering research or enabling companies to undertake large financial risks for the possibility of a profitable patent?
Best,
Future Intellectual-Property Lawyer
Science has a question for budding patent lawyers and business types: What does patenting a gene mean to you? To me, a gene is an address on a chromosome (physically) and a heritable trait (conceptually); to you, I suspect, a gene is a recipe for accomplishing something (making insulin) or predicting the future for an individual person (who is likely to get cancer and who is not). Patenting the former, using the recipe to make something, seems ridiculous. Nobody expects a durable monopoly on chocolate chip cookies for being the first to decipher the instructions on the back of a bag. The latter ends up being a bit more interesting, and potentially worthy of a patent.
Let’s think our way through the (recently invalidated) patents behind BRCA1 and BRCA2. The goal was to figure out if a person is vastly more likely to have breast cancer later in life. How? By looking for families where generation after generation of men is killed by breast cancer. Such families, while rare, do exist. In the era before the human genome was sequenced, in an era where every single A C T G of genetic code (sequenced into the language of DNA) cost a dollar to discern (with genes running thousands of bases in length), the scientists behind these patents found genes that follow the cancer through the generations of multiple families by finding tiny segments of chromosomes that follow the cancer. In these tiny segments were BRCA1 and BRCA2.
Next, these tiny segments of chromosome were sequenced—not just in these cancer-prone families. Families with some breast cancer and families with no breast cancer also had these same bits of chromosome read. The scientists noted that the BRCA genes in the breast-cancer-prone families were ruined—full of errors and missing chunks. The patented idea here was not the sequences themselves so much as the idea of using the diversity of sequences to predict future cancer risk—thinking of these genes as more than recipes, more than just an address, and more like a heritable trait. If your BRCA genes looked like those of a family riddled with breast cancer—the idea goes—your risk should be similarly high. After years of following people and their BRCA1 and 2 genes, we had a statistically rigorous sense of the lifetime risk of an individual getting breast cancer—if given the BRCA1 and BRCA2 genes carried by that person.
Such effort is more than stenography of nature. It was clever, difficult, and more than a little risky along the way—worthy of a patent.
Discerningly Yours,
Science
Send your science questions to dearscience@thestranger.com.
That case is a joke and will be overturned.
Individual scientists and drug companies perform years of work in order to identify, isolate and process the gene responsible for one particular protein. They, very simply, would not do the work if they didn’t think they could sell their new product as a testing kit. It’s not like they are patenting the human genome (that is INDEED, not allowed). They are patenting relatively short and discontinuous portions of DNA for which it had taken a tremendous amount of work to isolate the nucleic acids and associate them with disease. Also, in the interest of FAIR application of the law, there is no reason why the inventors responsible for the BRCA genes should be singled-out and taken advantage of simply because they have an important gene.
I liked your answer, Science.
-from a gene patent examiner…
Patents should be awarded on the basis of how “clever, difficult, and more than a little risky” they are, rather than original invention?
Patents should be given on the basis of a novel use (such as a particular diagnostic test) or product that is gene-based. The genetic code itself shouldn’t be patented since it wasn’t invented, it was “found”. That would be like me patenting an extinct organism because I found its fossil in my backyard and charging anyone else working with that same type of fossil a fee to study it.
Patents should not be given. They prevent the spread of knowledge and the dissemination of useful techniques and practices and allow companies to monopolise inventions and new technologies.
Let’s not forget that, by and large, the work that identified BRCA1 and BRCA2 and its link to hereditary breast cancer was carried out in federally funded laboratories. This work wasn’t done by some poor little biotech startup just looking to recover their “risky” investment. I don’t know the specifics of this case, but these are often patents filed by academic researchers based on a discovery they made using the government’s money, and then spun off into a for profit venture by said researcher.