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

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