I watched “60 Minutes” last night, during which Kevin Noonan got about 30 seconds to justify “patenting genes” and the Myriad BRAC1-2 assays. He did as well as could be done, speaking about the good the patent system does in incentivizing investment in medical advances. However, “big bad” Myriad declined to be interviewed, so all the viewer saw was a few shots of their posh-looking headquarters. Arguments about economics are not going to make a big impression as compared to two cancer patients who claim they can’t afford the assay or have no place to go for a second opinion, and Chris Hanson, the ACLU attorney, who likens patenting genes to patenting gold nuggets panned from a stream – a product of nature, no more no less. No one should get a patent on something like that!
I read all of Judge Sweet’s opinion and could see that Myriad was trying hard to convince the court that “isolated and purified DNA” is obtained by chemical and physical processes that necessarily alter the chromosomal DNA after it is purified, and that it is not just “purified” from a cell, but they have to try harder. I have little doubt that the Federal Circuit will reverse this decision, but the ACLU and the plaintiffs are swinging for the fences. Go back and listen to the July podcast “debate” between Chris Hansen and me that is in the archives of this blog. His arguments are reflected in the decision almost verbatim.
The Supreme Court may have taken quite a few patent appeals of late, but Pioneer Hi-Bred vs. J.E.M., which affirmed the patentability of plants and approved of Chakrabarty, was not a biotech case, and Chakrabarty did not involve patenting human genes. So the “transformation” vs. “isolation” debate will soon be re-run, I fear. I feel that our conversation with the “concerned public” has to go more like this:
“Mr. or Ms. Patient: No one owns your genes. No drug company with a gene patent is going to come up to you and say, ‘I have a patent on one of your genes, so you must pay me or you can’t use it anymore.’ The gene that the drug company has in that test tube is not the gene as it exists in your cells. It has been removed from the biological jungle of the human body by reactions that are something like decoupling a string of 15 freight cars from a freight train that is 1000 cars long. The bonds, or couplings, that kept the 15 cars with the train were chemically decoupled, and the 15 cars were put on a siding, where they can be cleaned, inspected to see what they carry, and perhaps put into the middle of a different train, using new couplings.
“Another way to think of a gene or DNA that can be patented is to consider biodiesel. It is the result of a chemical reaction carried out on fats or “triglycerides.” Your blood contains triglycerides, but no one has tried to patent blood containing triglycerides. The triglycerides used to make biodiesel are purified from animal or plant materials and then subjected to a chemical reaction that splits them into biodiesel, which will fuel a car, and glycerol, which is used to make candy. In much the same way. the DNA that Myriad has patented has been split out of the purified chromosome that it was part of. Your chromosome was not patented; a very small very useful part of it was.”
I don’t know if these analogies will help at all, but maybe it is time to start talking about what patents don’t let us do, rather than what patents let us control or bring to a stop.