ARI SHAPIRO, HOST:
Can you patent a human gene? Alexi Horowitz-Ghazi of our Planet Money team has the story of how this question wound up at the U.S. Supreme Court and how it raised an even more fundamental question - what does it mean to invent something?
ALEXI HOROWITZ-GHAZI, BYLINE: One day back in the fall of 2005, Chris Hansen was sitting in his office at the American Civil Liberties Union, looking for his next big case when the ACLU's science adviser popped in.
CHRIS HANSEN: And she said to me, do you know that genes are patented?
HOROWITZ-GHAZI: Genes - like individual pieces of our DNA.
HANSEN: And I said, well, that's just wrong. Let's sue somebody.
HOROWITZ-GHAZI: Hansen looked into it and discovered that companies had been patenting genes for decades. By the mid-2000s, an estimated 20% of the human genome had been claimed as private intellectual property.
HANSEN: The notion that some private company can own a part of my body seemed to me blindingly obviously a civil liberties issue.
HOROWITZ-GHAZI: So Hansen got to work finding just the right company to strategically sue in order to topple the whole practice of gene patenting, and he settled on a company called Myriad Genetics out of Salt Lake City. Myriad had extracted, isolated and patented the BRCA genes, which, when mutated, are responsible for the majority of inherited breast and ovarian cancer cases.
Myriad had invested millions of dollars and staked its future as a company on being able to use those patents to corner the market on clinical testing for dangerous BRCA mutations. But what that meant in practice was that if you wanted to get tested for one of these mutations, you basically had to get it from Myriad - no cheaper options and no second opinions allowed. Chris Hansen filed a lawsuit against Myriad in 2009, and in April of 2013 it finally arrived at the Supreme Court.
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HANSEN: Mr. Chief Justice, and may it please the court...
HOROWITZ-GHAZI: The question presented to the court was a kind of philosophical one. Was this thing that Myriad had done, extract and isolate the BRCA genes - was that an act of invention? - because the whole point of the patent system is to give people an incentive to innovate. What Myriad had done, Hansen told the justices, was not so much to invent something as much as it was to find it as it already existed in nature.
(SOUNDBITE OF ARCHIVED RECORDING)
HANSEN: This court has used the example of gold. You can't patent gold because it's a natural product.
HOROWITZ-GHAZI: Myriad's lawyer, on the other hand, chose the metaphor of a baseball bat to argue that, while Myriad had used natural material, the choice the company made of where to cut the specific BRCA gene from the human chromosome was itself an act of innovation.
(SOUNDBITE OF ARCHIVED RECORDING)
GREGORY CASTANIAS: A baseball bat doesn't exist until it's isolated from a tree, but that's still the product of human invention to decide where to begin the bat and where to end the bat.
HOROWITZ-GHAZI: Several of the justices did raise concerns over whether companies like Myriad would have enough incentive to continue to invest in genetic research if gene patents were overturned. But when the court issued its ruling three months later, the decision was unanimous. They said, quote, "Separating a gene from its surrounding genetic material is not an act of invention," end quote. They did make an exception for a kind of synthetic gene copy called cDNA. But with the court's decision, thousands of gene patents, including Myriad's claims on the isolated breast cancer genes, were invalidated. Human genes could no longer be claimed as intellectual property. Alexi Horowitz-Ghazi, NPR News.
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