Can Human Genes Be Patented?

Feb 22, 2012

Doctors, researchers, and patent lawyers are waiting to see whether the U.S. Supreme Court takes up a case about patenting a human gene. As WNPR’s Neena Satija reports, a Yale Cancer Center employee is among the plaintiffs.

Does a company have the right to patent a gene? That’s one question at the heart of a lawsuit against Myriad Genetics led by the American Civil Liberties Union and the Public Patent Foundation. The lawsuit targets the patent for genes known as BRCA 1 and 2. They’re used by Utah-based Myriad Genetics to test for hereditary breast and ovarian cancer. Ellen Matloff is among the plaintiffs in the suit. She’s director of genetic counseling at the Yale Cancer Center in New Haven.

MATLOFF: “We’re all born with our genes. And so for example with BRCA 1 and 2, we’re all born with two copies of each of these genes. And I don’t think those should be subject to patents.”

The center sees dozens of patients a week who may qualify for what’s called the BRCA (pronounced “BRACK”) analysis test. Because of Myriad’s patent monopoly on the BRCA gene, all lab tests get sent there. Matloff says that monopoly has stifled innovation and patient care.

MATLOFF: “No one else that I know of certainly has patented a gene and so strictly enforced the patent that it shut down every other entity in the United States, and prohibited anyone else from testing the gene, doing clinical research on the gene that would go back to patients – it’s never been done before.”

Many expected the Supreme Court to announce on Tuesday whether or not to hear the case. Since it did not, it’s unclear when a decision might be made. If the court decides not to hear the case, the ACLU says that federal legislators could take up the issue. For WNPR, I’m Neena Satija.