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Can human genes be patented? Wayne Law professor can explain Supreme Court case

April 15, 2013

If a company spends millions on research, and discovers it can isolate specific human genes linked with a disease, can the company then patent the genes and the research and treatments that result from its discovery?

Of course, the issues surrounding Association for Molecular Pathology v. Myriad Genetics, which is before the U.S. Supreme Court now, are more complicated than that. But in simplest form, they boil down to whether human genes can be patented.

Wayne State University Law School Associate Professor Lance Gable, a public health attorney who specializes in bioethics, is available to comment on the case and the issues and help reporters make sense of them. He’s been on Wayne Law’s faculty since 2006, and also is a scholar with the Centers for Law and the Public’s Health: A Collaborative at Georgetown and Johns Hopkins Universities, which is affiliated with the World Health Organization and the U.S. Centers for Disease Control and Prevention.

Association for Molecular Pathology v. Myriad Genetics raises legal and ethical questions about whether the isolated genes in question — BRACA 1 and BRACA2 — are “products of nature” that can’t be patented, as the parties challenging Myriad maintain, or “the final step in an extraordinarily complicated set of inventive actions that led to the creation” of a molecule previously unknown, according to the lawyer for Myriad Genetics of Utah, which holds the patent being challenged by the lawsuit.

The genes in question are used to test for susceptibility to hereditary ovarian and breast cancer. Myriad has held the patent for 15 years. The challenging parties say the company has made the test for the genetic mutation too expensive for some women.  The test costs about $3,350. The cost, the challengers maintain, makes the company’s monopoly testing out of reach for women without insurance, and the patent on the genetic “products of nature” keeps scientists outside of Myriad from doing important research to help patients.

The company says patents have been granted for all sorts of genetic products, and that the price of the test for the specific genes that signal cancer susceptibility represents the millions of dollars Myriad spent on its research. And, Myriad has said, thousands of scientists outside of the company have published papers on the two genes, so research hasn’t been stymied.

To contact Gable for comments about the issues, call Carol Baldwin, Wayne Law director of communications and marketing, at 313-577-4629 or send email to carol.baldwin@wayne.edu.