For while Myriad Genetics, Inc was a lice in the pelt of breast cancer research and breast cancer treatment, as they had the patent for two common genes associated with breast cancer: BRCA1 and BRCA2. Their logic was that because they isolated the gene via cloning and PCR, they created a new and unique product: cloned BRCA1 and BCRA2. Any molecular biologist can teach a high school kid to isolate and clone any gene in the human body, but this logic was to deaf ears at the legal team of Myriad Genetics. To test if you might be a carrier of a variant of BRCA1 or BRCA2 that would greatly increase your chance of getting breast cancer you had to cough up $3000 for a simple genetic test that cost by itself no more than $50 to perform.
Last year Myriad won a court battle between logic (or common sense if you will) and their own financial interest. Their focus on the cloning step was perceived as nothing but insulting to anyone familiar with common cloning protocols, but it was convincing on legal grounds in the mind of the Court of Appeals for the Federal Circuit. Until today, as the High Court reversed the previous court decision, which was an overrule of another court battle.
Another ethical issue is: how can a corporation own a naturally occurring generally defined gene? First of all, every human and all its close relatives, including mice and rats have a BRCA1 and BRCA2 gene. Does Myriad before today own all these genes in each individual of each species? If it only applies to human cases, how different would a gene variant be to considered to fall under Myriad’s patent? If a gene duplication event would take place, would Myriad be able to sue this individual for having an extra copy of their patented gene?
Although this legal battle was won by common sense, Myriad will surely appeal the high court’s ruling, as their entire company in based on their patented ownership of BRCA1 and BRCA2.