Tuesday, April 9, 2013

Supreme Genetic Overlords to Hear Case About Genetic Slavery

I get the feeling not many people are aware of the case coming before the Supreme Court next week.  At least, I hope that's the reason there isn't more of an uproar about it.  Public outcry was loud and boisterous when the internet was at risk -- when SOPA was on the table.  But I haven't yet heard anyone outside of the breast cancer community talk about the Gene Patent case with any gusto.  If you are aware of this case and aren't upset about its implications but were upset about SOPA, it's time for a public shaming.  You are basically saying you care more about sifting through pictures of illiterate cats than you do about private industry owning 20% of your body.

It's difficult for me to collect my thoughts long enough to write about the idea of gene patenting, because it's so completely absurd.  But I'll do my best to sort through it.  We'll start with what actually qualifies as intellectual property and what doesn't.  Due to recent circumstances in my own life, I've become somewhat of an expert on the topic.  First off, only physical, man-made material is subject to intellectual property law.  Ideas, thoughts, topics of interest, archetypes, stereotypes, etc., are not.  Neither are naturally-occurring substances.  I couldn't go out and patent a type of tree, for instance.  Disclaimer: Please make sure if you are seeking legal advice for anything related to intellectual property law, that you don't listen to me.  I'm not a legal professional, I'm just a very annoyed third party.

Medical research has a bitter history with bumping up against the acceptable limits of intellectual property law.  Probably 90% of all articles about this upcoming case highlight the work of Jonas Salk and the polio vaccine he developed.  I've never done any in-depth research on the man, but it seems as though (from an outside perspective) that he was about as benevolent as they come.  The vaccine he created, for example, was subject to patent law.  It was an engineered substance manufactured through many hours and labor and research, consisting of a unique formula invented by Salk in his laboratory.  What's most miraculous about the man, and what even extends beyond the fact that he cured the major disease of his time, is his decision not to patent his vaccine.  When asked for the rationale behind his decision, he famously said, "There is no patent.  Could you patent the sun?"

Well, you could, according to the defendant in this case, Myriad Genetics, as long as you isolate it.  And since the sun looks plenty isolated to me, I'm going to go ahead and snatch that up.  Any time you go outside after today, you're going to owe me a lot of money.  But I digress.  Like I said earlier, as a general rule, naturally-occurring substances and living things are not subject to IP law.  Viruses can't be patented, because they're alive and naturally-occurring.  But vaccines that use viruses in their formulas can be patented.  Even genetically engineered viruses can be, and are, patented.  As long as the patent includes a material invention that isn't a derivative of a previous invention, it's legal.  A modified form of anything organic can be patented, but the original thing itself cannot be.  This makes it so that several people can be researching a cure for AIDS at the same time, for example.  The AIDS virus can't be patented, but the unique research and therapies manufactured by various research teams can be.  Therefore, until now, it's generally been agreed upon that nothing organic could be patented unless significant work has been done to create a new, previously nonexistent substance.  Biotech companies have been ignoring this rule for years, though.  Now it's caught up with them, and the Supreme Court will make the final decision about whether or not organics are subject to patent law.  Myriad is arguing that the physical act of isolating genes allows them to patent the genes they isolate.  Granted, I don't know much about what it takes to isolate a gene, but I don't much care either.  I could isolate a rhesus monkey from its friends, but I'd probably be met by uproarious laughter if I told people I intended to patent it.  If this argument holds, you could patent anything, as long as you do the work to get that thing by itself.  Fair warning to the next girl I take out to a nice sushi dinner and thought-provoking film; consider yourself patented, sweetheart.

What makes this case particularly alarming, and why it's coming to a head right now, is that Myriad Genetics currently holds the patents to the two BRCA genes -- the genes heavily linked to an increased risk of breast cancer in women.  Keep in mind that there are several genes linked to an increased risk of other cancers that are also patented.  What this means, at a very basic level, is that Myriad Genetics controls every single thing associated with the BRCA genes.  If you want to be tested to see if you're at an increased risk of breast cancer, guess who gets your money?  If you want to be cured of breast cancer sometime in the future through emerging genetic therapies, guess who will be getting paid for that?  And since no one else is allowed to set foot in the BRCA arena, they get to charge whatever they want.  This keeps the costs of testing very high and inaccessible to most people.  I've looked into genetic mapping once myself, not for breast cancer, obviously, and found it to be very expensive.  A large part of the cost can be attributed to companies that own the parts of your body you're looking to have tested.

Aside from the economic issues associated with holding a monopoly on parts of a person, there are several moral implications as well.  Last I checked, owning people was outlawed a long time ago, by a fine gentleman with a sick beard and an address that took him to a place called Gettysburg (that I'm guessing he got from GoogleMaps).  Basically what these companies do, is go around looking for significant research that determines a link between specific genes and cancers, and buy them out and patent the genes.  Suddenly, if anyone else decides they want to work on curing that particular cancer using genetic therapy, they have to apply to the company that owns the patent for a license to do so, and pay for the license.  This practice limits the ability to pursue research into curing certain types of cancer -- research that should be widespread and accessible to anyone who wants to try their hand.

Gene patenting is a practice perpetuated by the very same people that ruin capitalism time and again for all the rest of us.  It seems pretty obvious to me, as a writer, that from a legal standpoint no one should be allowed to own something they didn't create.  And from a moral standpoint it looks pretty straightforward, too.  If you're deliberately limiting the ability to further medical technology and alleviate the suffering of millions of people, you yourself are a cancer.  May the ghost of Jonas Salk haunt your days forever.

There's plenty more I could write about this topic, but I hope I've provided a good introduction to the controversy that is gene patenting, and at least a few good reasons as to why you should be really, really pissed about it.  Right now, cancer is at the vanguard of the argument, but there's solid evidence to suggest that many, if not most, aspects of our physical and intangible natures are determined by our genetics.  In that case, we all have a very real incentive to nip this in the bud now, or gene patenting will open the door to a world where you'd have to purchase a license to have brown eyes, or be a specific height.  I'll be following the Supreme Court arbitration closely going forward, and I'll do my best to post updates as the situation develops.  As always, feel free to correct me if I'm wrong, or contribute to the discussion.


  1. Very well said Kevin. It is extremely scary what corporations continue to attempt to get away with. Hopefully the Supreme Court understand the different between intellectual property and alive/naturally occurring substances, in this case DNA and the genetic code making up all living creatures.

  2. Maybe I'm not completing understanding all of this, either, but I don't see this lasting in the long-run and you may be reading into it a little too far. Don't genes occur naturally? Only if they were modified and isolated (such as other organics) or created artificially could the genes be patented. However, it does not sound like that is what they are doing (admittedly, your blog post is the only information I've read so far).

    There are companies that exist to obtain investors to patent broad, general products (or ideas and concepts) and make bank from them until they're finally overruled in court. I was once sued by a company that owned the "patent" for streaming any type of multimedia to an end-user. It was so broad that it covered any image, video or audio that was transferred electronically from one place to another. They could have sued anybody that maintained a web site containing anything other than plain text. Television and radio stations and their providers? The same thing. They targeted easy demographics to start and I happened to be a part of one. I could not afford to pay them the exorbitant license fees and I had to take down all of my web sites they had listed before I ended up in federal court fighting a battle I couldn't afford or win on my own.

    Silly patents like this pop up all the time, but it will take time and money to set a precedence in court and help clarify gray areas of the patent laws and prevent this from happening in the future. Unfortunately, in the meantime, it's slowing progression just to line someone's pockets.

  3. Dustin, I couldn't agree with your last statement more. And you're absolutely right. It's entirely possible that this will all be sorted out very quickly. However, I think the egregious abuses of patent law reveal a much larger problem.

  4. Hi Kevin,

    Thanks for writing about this. It's a landmark case and the ultimate decision the Supreme Court reaches will impact many, perhaps all of us at some point down the road. I haven't been able to figure out why more people aren't up in arms about this matter either. I'll be watching things closely too. By the way, great post title!

  5. They have held this patent for YEARS...it isn't a silly patent and it won't be sorted out. Consider this, everyone has a BRCA gene, some of us are the (un)fortunate ones who have a mutated gene. Their patent is very general which means that another isolated gene which includes a sequence similar to the BRCA gene could be subject to their patent. Consider the research that is being delayed because of this patent. As someone with the mutation, I fully understand the impact because I'm in the arena but we need to look at the even bigger picture which is the end of medical advancement if we allow companies to patent our genetic makeup. I hope you take a minute to read my post