In a landmark decision, a Federal judge in the US has struck down patents linked to the BRCA1 and BRCA2 genes which make women susceptible to breast and ovarian cancer. Myriad Genetics, of Utah, has patented the two genes and charges US$3,000 for a test which shows whether women are more likely to be struck down by cancer. The decision is sure to be appealed.

Patient groups, medical organisations and free speech advocates were delighted. According to the New York Times, they had argued that “genes, products of nature, fall outside of the realm of things that can be patented. The patents, they argued, stifle research and innovation and limit testing options.”

US District Court Judge Robert Sweet agreed. In his 152-page judgement he said that the patent was “a ‘lawyer’s trick’ that circumvents the prohibition on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result.”

The case obviously raises fundamental issues about what “nature” is, but American lawyers also interpreted it as a case of free speech. “The human genome, like the structure of blood, air or water, was discovered, not created,” said Chris Hansen, a lawyer with the American Civil Liberties Union. “There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.” 

Supporters of gene patents forecast that the decision, if upheld, would cripple the development of personalized medicine. “The genetic tools to solve the major health problems of our time have not been found yet,” commented patent lawyer Edward Reines. “These are the discoveries we want to motivate by providing incentives to all the researchers out there.” ~ New York Times, Mar 29