Guest Post by Barbara A. Brenner Executive Director, Breast Cancer Action

One of the saddest aspects of capitalism is that companies think they can and should own anything they get their hands on. Some time ago, they started obtaining patents on human genes, including two genes implicated in breast cancer: BRCA1 and BRCA2.

The company that obtained the patents on these genes is called Myriad Genetics. With the patents, Myriad controls both the tests given to women to see if they carry mutations on these genes that may predisposed them to breast and ovarian cancer, as well as all the research related to the genes.

How can anyone own our genes? Up until now, no court has been asked that question. But last week, in a ground breaking decision, a federal judge in New York declared that Myriad’s patents on the breast cancer genes are invalid because they patent a part of nature.

That may seem like an obvious thing to most of us, but the research community is up in arms about how their inability to patent genes will inhibit their ability to innovate new treatments. Sounds plausible, but don’t be fooled. These patents are more about making money than they are about taking care of people who are sick.

Breast Cancer Action, an education and advocacy organization that carries the voices of people affected by breast cancer, was a plaintiff in the lawsuit brought by the American Civil Liberties Union against Myriad over the patents. Because — unlike almost all other breast cancer organizations — we don’t accept funding from Myriad or other companies that profit from breast cancer, we could stand up for  the interests of patients who either couldn’t afford the very expensive test, or who couldn’t learn what their “ambiguous” test results meant because the research wasn’t being done to find out.

Ambiguous gene test results are not uncommon, and they are most often found in women who are not white. So, once again, the worst impact of health policy – in this case, the policy to allow genes to be patented – fell on the people who were most likely to have the worst breast cancer outcomes.

Thanks to the ACLU, the Public Patent Foundation and a federal judge, the patents on the breast cancer genes are now invalid. That means that, once the decision becomes final, new tests will be on the market, and researchers will be able to pursue a greater understanding of what mutations on the genes mean.

Myriad will appeal. The case will probably eventually end up in the US Supreme Court. Myriad might get a stay of the trial court ruling pending that appeal. If they do, we’ll have to wait for our genes to be returned once again to their rightful owners – us.

Reprinted with permission.

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