Yes, We Have No Bananas Patented

aristotleCan someone patent your DNA? Not anymore. It sounds Kafkaesque, but this practice has been business as usual in certain companies for three decades according to Jesse Holland in his AP article, “Court says Human Genes Cannot Be Patented.” This month the Supreme Court unanimously voted to deny patents on unaltered human DNA. The action invalidates more than 5,000 patents. Yet the court opted to approve patents on genetically altered DNA. Just what is the difference, and what does it mean for consumers?

Justice Clarence Thomas wrote that “a naturally occurring DNA segment … is not patent eligible merely because it has been isolated” (“Supreme Court Bars Patents on Unaltered DNAby Dianna Stafford). In other words, finding something in nature is not the same as inventing something. According to Holland the court has said, “Laws of nature, natural phenomena and abstract ideas are not patentable.” Imagine that the first person that found a banana got a patent on it. Forget banana cream pie, banana pudding, or banana and peanut butter sandwiches. Bananas would be exorbitantly expensive. Why? No one else would be allowed to grow bananas because that person would have a monopoly. It would be, “Yes, We Have No Bananas,” for real.

Remember Angelina Jolie? We weren’t just shocked that she had a preventative, double mastectomy by choice. We were shocked at the sticker price for the test that determined that she had a faulty gene and had inherited a higher genetic predisposition for breast cancer. Some $3,000. The test was too expensive for most women to even consider. And why? According to  Holland, the company sells the only BRCA [diagnostic] gene test  because it holds the patent and can keep the cost prohibitive.” This means ” their patents allowed them to have a monopoly on genetic testing for hereditary breast and ovarian cancer.”

In other words, no one else could sell you this test. This company is not the only one that has such a patent, but it has been the deciding one for this case. Koebler quotes Larry Brody of the National Institutes of Health’s genome technology branch as saying ” the ruling will make the field of diagnostics, at least for breast cancer, much more open.” As the case was brought on by the American Civil Liberties Union, he also quotes Sandra Park, of the ACLU’s Women’s Rights Project as saying, ” Today, the court struck down a major barrier to patient care and medical innovation…because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued.”

And according to Stafford, Biotech research companies will continue to thrive as the Court has ruled that so-called complementary DNA, or “cDNA,” which is manipulated in laboratories, “is patent eligible because it is not naturally occurring.” She quotes Meeta Patnaik, a life science diagnostics consultant working with Kansas City-based MRIGlobal and other clients on the greater importance of synthetic DNA for biomedical research:

In the long run, patentability of synthetic or cDNA may be more important for the continuation for biomedical research…Myriad actually was one of the few with patents on actual genes with no manipulation…Most other patents are method or process patents that include manipulation of the genes. Advances in technology already were enabling other manufacturers and developers to overcome these patent issues, so the impact is not as significant as it could have been.

In other words, the future has arrived. And, yes, it has more genetic testing choices for consumers and patients.

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