Arthur Caplan

Caplan on the Myriad Patent Case

[Posted on behalf of Art Caplan] On January 7, 1610 Galileo Galilei, the Italian physicist and astronomer, aimed his new invention, the telescope, at the sky and became the first human to observe three of the moons orbiting the planet Jupiter.  His discovery created a sensation since he had shown that there were objects in…

[Posted on behalf of Art Caplan]

On January 7, 1610 Galileo Galilei, the Italian physicist and astronomer, aimed his new invention, the telescope, at the sky and became the first human to observe three of the moons orbiting the planet Jupiter.  His discovery created a sensation since he had shown that there were objects in the universe that were not circling the Earth – throwing into doubt the view that his church, the Roman Catholic church, taught that the Earth was the center of the universe.

If Galileo had been alive today he might have been working for a private science company.  If so there is little doubt that they would have insisted he seek a patent for the marvelous telescope that revealed amazing secrets about the world.  If that company had been Myriad genetics they might have insisted that he not only patent the telescope but also everything he found when he looked through it, including Jupiter and its moons.  In a way, that is what Myriad did when in 1994 it, along with the University of Utah, sought a patent on an association scientists had discovered between a set of genetic mutations and a high risk of developing breast cancer.

The patents Myriad received have earned the company a pretty penny.  They have had a monopoly over all genetic testing for breast cancer for nearly two decades.  Doctors and patients have complained bitterly that Myriad’s high priced tests have limited access for many women and hindered efforts to conduct research that might have more rapidly improved the accuracy of testing.

I think the Myriad patents should not have been awarded.  Nor should any patent that relies solely on looking at genes as they exist in nature and finding associations with the risk of getting a disease.  The standard for a patent is not discovery but making something useful out of a discovery.  Patenting genes is too close to trying to patent the moons of Jupiter which Galileo discovered but did not create.  Myriad’s early patent arguably hindered the willingness of others to aggressively explore better tests for a terrible disease.  Other patents on other gene sequences could have the same effect.

If Myriad discoveries the equivalent of the genetic testing telescope then great—let them have their patent.  But finding what is out there in nature be it Jupiter, the moon, or a sequence of genes gets you a place in history but not a patent.