The best way to explain the Supreme Court's decision on gene patenting is with the help of Angelina Jolie. When she announced her double mastectomy in May, Jolie said she opted for the procedure after a test showed she carried the BRCA1 gene that greatly increases the chance of breast cancer. Due to a patent, only one company sells the genetic test and that company can severely mark up its cost. Today's ruling changes that.
In a unanimous ruling regarding Association for Molecular Pathology v. Myriad Genetics, the court ruled that naturally-occurring genes can't be patented, but that synthetically-created genes could. While it's unanimous, it's also a mixed ruling with the edge in favor of researchers and doctors who don't agree with decision to give the patents to Myriad—the company which isolated the breast cancer-linked BRCA1 and BRCA2 genes.
Myriad's seven patents are powerful, and have allow it to be the only company that can provide the BRCA tests to women—a monopoly of sorts. "For nearly two decades, its patents have blocked the use of better, cheaper technologies, forcing patients and insurers to pay $3,000 to $4,000 for tests that would cost less than $100 in an open market," MSNBC's Geoffrey Cowley wrote this month. And when Jolie announced her mastectomy last month, it helped push Myriad's stock to a 52-week high. But obviously, that puts the test out of reach for people if their insurance companies don't cover it.
Right off the bat, it's still unclear how financially damaging to Myriad this ruling will be. The bloggers at SCOTUS blog during their live chat said, "The Court's decision strikes a middle ground that likely will not be particularly disruptive." But it's unclear whether they meant financially disruptive.
The ruling sets a table for a cheaper tests since Myriad is no longer the sole owner of those naturally-occurring genes. MSNBC's Gabriela Montero-Resto tweeted:
(But you can still patent the synthetic ones.) This means that breast cancer test just got a whole lot more affordable. Humanity win!— Gabriela RM (@GabrielaRM) June 13, 2013
That's not the only way the ruling is a victory for people who carry the BRCA gene. The decision also creates new opportunities for researchers who may come up with other options for treatment than are available now. "The decision represents a victory for cancer patients, researchers and geneticists who claimed that a single company's patent raised costs, restricted research and sometimes forced women to have breasts or ovaries removed without sufficient facts or second opinions," Wolf wrote.
Justice Clarence Thomas penned the opinion, and the central argument is this: Myriad didn't really invent anything. The opinion reads:
A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated. ...
Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13. The question is whether this renders the genes patentable.
All isn't lost for Myriad however. Thomas notes that he agrees with a lower court's assertion that Myriad is in a good position to patent the applications on those sequences:
Similarly, this case does not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes. Judge Bryson aptly noted that, "[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications of that knowledge. Many of its unchallenged claims are limited to such applications."