Patently Wrong About BRCA Genes

Myriad Genetics thinks it owns two of my genes. Yours too, sisters. Myriad, a Salt Lake City-based biotech company, holds seven patents related to the BRCA genes, a pair of genes whose mutations are related to breast and ovarian cancer.

These are big genes—and potentially nasty ones. A water molecule has a molecular mass of 18; BRCA1 has a molecular mass of 220,000. Its cousin BRCA2 is twice as large.  Because of their size, these big girls increase the chances of mutations, which can lead to cancer.

My mother died of ovarian cancer, and following in her footsteps is one of the fears that sometimes keeps me up at night. I have no problem with Myriad doing research and trying to cure breast and ovarian cancer, but I do have a problem with them thinking that they own two of womankind’s genes. The ACLU, one of the plaintiffs in a recent court case challenging the patents, is on the same page. “The human genome, like the structure of blood, air or water, was discovered, not created,” read its brief.  I agree. Patenting a gene ends up closing the door on future research into gene-related cancers.

Fortunately, the judge in the case saw it our way.  In a 152-page ruling, U.S. District Judge Robert W. Sweet (sweet!) struck down Myriad’s patents.  Genes are part of Mother Nature, not something that men in lab coats invented. They can’t be patented. It would be like Christopher Columbus patenting the New World or Marie Curie patenting radium or Neil Armstrong patenting the moon.

What makes the case even more incredible is that Myriad didn’t even discover the pair of BRCA genes that reside on the long arm of chromosome 17. That credit belongs, no surprise, to a woman, Dr. Mary-Claire King. Twenty years ago Dr. King established that there was a mutation on a single gene, BRCA1, that caused inherited breast cancer. At a time when no one else was studying the genetic link to breast cancer, her discovery was a breakthrough, one that opened up new avenues of discovery. Imagine what would have happened if Dr. King had decided to patent BRCA1 and its cousin BRCA2?

That honor would belong to a man.  In 1991, a year after King’s discovery, Myriad Genetics was formed by University of Utah researcher Mark Skolnick and a group of venture capitalists. Their goal was to pursue research into the genes and mutations associated with breast and ovarian cancers. As the company developed diagnostic tests to detect the genes, Myriad took out seven patents on the BRCA genes.

Myriad soon had a monopoly on research relating to these two genes, and was charging $3,000 for tests to determine if a woman was at high risk of getting breast or ovarian cancer. Moreover, without paying a huge fee, other companies couldn’t do research on the genes and, perhaps, even develop a cheaper test.

In court, Myriad and its partner, the University of Utah Research Foundation, claimed that isolating a gene from the body transforms it and makes it patentable.  Not so, ruled Judge Sweet. The companies patents were “improperly granted” because they involved a “law of nature.” He went so far as to call Myriad’s argument a “lawyer’s trick.” Sweet!

After the ruling Myriad’s supporters predicted doom and gloom for the bio-capitalists. Without the promise of making piles of money, biotech start-ups would have a hard time raising capital. One prominent venture capitalist predicted that the government will have to fund research because it’s going to be hard to justify it outside of university labs. Oh, no!

I have no problem with cancer research being done inside or outside academia. I just want knowledge and information to flow like water—before another biotech company tries to patent that.


  1. It is disgraceful that a private company can control genes and withhold them from other research institutions, unless they’re paid the big bucks. Many thanks for Judge Robert Sweet for seeing through this corporate takeover and deciding in the best interest of society.

  2. Kim O'Brien says:

    This points at something bigger than just abuse of the patent process. The first thing you notice is that this thing originated at an American University. I have little doubt that the first research was done with government money. When it appeared that there was money to be made in jumps these “Venture” [read vulture] capitalists. Now that they have lost for the moment they cry “That is the end for the bio capitalist.” So how is a bio capitalist any differnt than any other capitalist? Answer: they aren’t. Every capitalist is out to increase his holdings “make money” if you will. It makes little differnce in what way or how. So why should advances in medicene be tied to these vulture capitalist? Answer: it shouldn’t. Remove these capitalist vultures. Seperate them from their money and you’ll find that they are little more than bean counters. Organize society on a socialist basis through a revolution to toss aside these vultures and meet human needs not some profit hunger bankers and we will all be better off.

  3. The passion behind this article is great. Though it might make sense to focus those passions on science, innovation and a cure. This case is about to get thrown out. The ACLU had not right to sue. The Judge's key points make no scientific sense and reverses a generation of patent rulings.
    As far as patenting the Gene stops science from doing research. This is simply not true.

  4. This will free up researchers and companies to work on known genes such as BRCA1 and BRCA2, but might it not make companies less likely to research new genes because they will find it harder to get patent protection?

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