From the very beginning of genetic research and modification, it was obvious that it would only be a matter of time before a claim would be staked on the very programming of human life by governments or international corporations. Unfortunately, that day has finally come with the recent patent of two human genes by Myriad Genetics.
The two genes being targeted by Myriad are BRCA1 and BRCA2 and they have already been the subject of several court rulings and a lawsuit filed by the American Civil Liberties Union (ACLU). Some scientists are claiming that these genes provide a link to “hereditary” breast or ovarian cancer. Yet, considering the history of corporations and the advantages they would gain by “owning” the DNA of a species (particularly of the human variety), we can safely assume that there is another agenda afoot which is concerned with more than mere science and development.
With that in mind, the ACLU has filed a lawsuit directed against Myriad Genetics aimed at challenging their claim to the human genes. Interestingly enough, this lawsuit is also working its way through the U.S. Court of Appeals for a second time.
Originally, a District Court had ruled that Myriad’s patent on the human genes was invalid because it lays claim to a “product of nature,” which is not patentable under law. However, in a 2-1 decision, the court of appeals reversed that ruling, agreeing with Myriad that “isolating” the DNA by removing it from the cell did in fact create a patentable molecule. Thankfully, the Supreme Court vacated this ruling and has ordered the Court of Appeals to reconsider the case.
Yet the idea that a corporation can patent the most basic and fundamental pieces of human biology is so onerous that, in addition to a lawsuit and several court appearances, it is beginning to draw the ire of notable DNA researchers – even those who have advocated eugenics in the past.
Indeed, Dr. James Watson fits the bill in both of these categories. Not only that, but having been credited with the discovery of identifying “DNA’s ability to create life through its double helical structure and its information-coding sequences,” as well as leading the Human Genome Project in the early 1990’s, Watson is well-respected in his field.
This is why his recent filing of an amicus brief in opposition to gene patents and in conjunction with the lawsuit filed by the ACLU against Myriad Genetics is so groundbreaking and important.
In this brief, where Watson describes gene patenting as “lunacy,” he explains why, from his perspective as a scientist, why this process cannot be allowed to continue.
In his brief, Watson states how the idea of patenting genes during the course of his own work was simply unacceptable. He writes, “Amusingly, after I gave my first presentation of our DNA structure in June 1953, Leo Szilard, the Hungarian physicist and inventor of the nuclear chain reaction, asked whether I would patent the structure. That, of course, was out of the question.”
He continues by stating, “DNA’s importance flows from its ability to encode and transmit the instructions for creating humans. Life’s instructions ought not to be controlled by legal monopolies created at the whim of Congress or the courts.”
Of course, the issue of human gene patenting is not a new one. At the time that Watson was leading the Human Genome Project, which operated under the guise of mapping the entire human genome, the National Institute of Health (NIH) was itself filing patents on genes. Watson claims to have opposed the patenting scheme and, as a result, he resigned from the NIH in 1992.
He states in the brief, “I believed at the time – and continue to believe – that the issue of patenting human genes went to the very crux of whether the information encoded by human DNA should be freely available to the scientific community.”
Watson has also attacked the faulty logic that underpins the ruling of the Appeals Court and the argument of Myriad Genetics. This is because the Corporation (and the Court) use relatively insignificant chemical differences which result from removing the DNA from the cell but ignore the fact that isolated DNA “encodes for the same proteins as DNA in one’s body.”
Watson writes, “They myopic viewpoint thinks of a human gene as merely another chemical compound, composed of various bases and sugars. But history and science teach us otherwise. A human gene, which is a product of nature, is useful because it conveys vital information.”
This position has actually gained some ground within the U.S. Government. In the ACLU’s lawsuit against Myriad Genetics, the U.S. Government filed two briefs which concluded that these patents are, in fact, invalid.
Also at issue in the coming Federal Circuit court hearings will be whether or not the patenting of human genes will actually impede future innovation, development, and discovery. This is because, if the patents are successful, they will prevent other laboratories from testing the genes, the method of testing and acquirement notwithstanding.
Watson also speaks to this issue. He states:
To this day, we continue to learn how human genes function. We estimate that humans have approximately 22,000 genes. We have yet to fully understand the functions of all human genes, but this lack of understanding is further reason that scientists should be permitted to experiment on human genes free from any threat of patent infringement.
Of course, Myriad Genetics has countered in its own brief that it only seeks to patent the two genes it has isolated, not any of the other 22,000 estimated genes in existence.
Such a week argument barely warrants a response as it is clear that, if the patents are found legal in the case of these two specific genes, the floodgates of patents on the other 22,000 will follow before the ink has dried on the patent forms of the genes at issue.
The oral arguments before the Federal Circuit Court are set to begin on July 20.
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