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Is It Fair To Patent Genes? ACLU Takes On Biotech Over Issue

Publication Date: 
April 13, 2010
USA Today
Elizabeth Weise

Professor Hank Greely is quoted on intellectual property law and patenting genes in light of the ruling against Myriad, which invalidated part of several patents on the genetic basis for breast cancer. Elizabeth Weise of USA Today filed this story:

For Lisbeth Ceriani, news that a judge had invalidated the patent on the gene that almost killed her was a victory. Gene patents, she says, are "turning our bodies into commerce."

Ceriani, of Newton, Mass., developed an aggressive form of cancer in both breasts at age 42. She wanted to be tested for mutations in the BRCA gene, which would tell her whether she was also at high risk for ovarian cancer.

But it took an agonizing year and a half, because the company that makes the tests and owns the patent on the gene had chosen not to contract with her insurance provider, MassHealth, a form of Medicaid, because the rate of reimbursement wasn't high enough. Only when the company, Myriad Genetics of Salt Lake City, donated 200 tests to the state was she able to be tested, she says.


Sweet's ruling was "surprising," says Hank Greely, a law professor at Stanford University and expert on biotech law. The legal underpinnings of whether genes are patentable "had been left open over the last 30 years" because the original decisions to allow such patents weren't as clear as they might have been, he says. But "because the patent office had been granting and courts had been upholding them for 30 years, plus the tens of millions of dollars invested," everyone thought they would stand.

Instead, Sweet in effect said, " 'You didn't invent this, you didn't make it, you shouldn't get a patent on it,' " Greely says.