Patents must balance profit with social cost

Published: 12th June 2013 07:46 AM  |   Last Updated: 12th June 2013 07:46 AM   |  A+A-

The US Supreme Court’s verdict on a rather unique case, which seeks to answer the question if human genes can be patented, will soon be available. The case relates to the claims of Myriad Genetics, a biotech company that has patented two genes, BRCA-1 and BRCA-2, which are responsible for breast cancer. According to a plaintiff in the case, the Myriad’s “monopoly on the BRCA genes makes it impossible for women to access other tests”. As a result, this “monopoly” has prevented the use of better technologies and pushed up costs.

The rationale for patents is to ensure that the inventor’s discoveries, or intellectual property rights, are not negated by other researchers. Normally, the rights relate to an invention that is totally new. In the present case, however, the question is whether the genes, which are natural, fall in this category. The BRCAs are, of course, not “normal” genes but mutations that cause the ailment. Even then, to claim that the company has “discovered” them is stretching the point, for the mutations are a natural process which may or may not take place.

However, Myriad has a point when it says that firms which develop a process to identify the mutations have the right to patent it. Otherwise, investments in genetic research will be discouraged. Lower courts have been unable to decide if the process of isolating a mutated gene is creative enough to be patented since nature itself cannot patented. The judgment will be known in a few weeks even as film star Angelina Jolie’s mastectomy operations followed the discovery that she carried the “faulty” BRCA-1 gene. However, since not everyone who is prone to cancer is a celebrity, a balance has to be achieved between the commercialisation of research and its social purpose. Also, the publicly funded human genome project would have made the Myriad’s discovery possible any way.


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