The Company That Owns Your Genes
By Jeffrey Tucker
The Supreme Court is soon going to decide on one of the most contentious issues in medical science: Can human genes be patented, and to what technologies can those patents be extended to cover?

The particular issue concerns one company, Myriad Genetics, and its claim to own the source code of two genes called BRCA1 and BRCA2, which, when mutated, are related to breast and ovarian cancer. If anyone else tries to test for this mutation, the company’s lawyers swoop down and stop it. Their patent claim has netted the company a great deal of profit, and the CEO a huge salary (nearly $6 million).

The Myriad patents have understandably annoyed many people who are interested in the spread of human knowledge about how to defeat this and many other horrible diseases. That’s why the American Civil Liberties Union has sued. One lower court sided with liberty, and another court sided with the monopolist. Now the high court is called upon to settle the dispute.

In particular, the court will try to decide whether these two genes are more correctly thought of as part of nature, and therefore not subject to patent, or are different enough in isolation to constitute a real technological discovery. Obviously, the entire scientific community is rooting against this company. Researchers need up-to-date information.

It’s one thing for a company to keep its stuff private. That’s a normal business practice. Think of Google: Its search algorithm is a closely held secret, but most everything else it gives away. Every business would like to keep its secret sauce secret. But the nature of the commercial marketplace is always working in the other direction. Profits attract competitors, who try to outdo the innovator in service and price.

That’s how free enterprise works. The patents take a secret to a different level. The technology behind the patent is public information — in fact, it has to be. What the patents do is actively prevent other companies who have reverse-engineered the code from using their newly acquired information. In other words, patents essentially violate other companies’ rights to innovate. This is the bone of contention.

In other words, the patent holder is making a killing using a government grant of privilege over something that has been with us since the dawn of humankind. Meanwhile, anyone else who wants into this business suffers, as do the people seeking testing for cancer.

The opinion will be rather tricky to write. It will attempt to avoid the largest question that everyone is asking these days, which is whether any patents are economically and morally valid. Instead, it will try to narrow the ruling to cover only the point in dispute.

The larger issue is what can and cannot be patented with the government. It’s a controversy that has been around as long as the patent-power itself. During the Industrial Revolution, it was only the high-profile inventions that were subject to the patent. Think of the steamship or, much later, the telephone and the airplane. Now the limit of the patent is entirely up to the clerks at the Patent Office. They can issue one on anything, and are tested only later in court.