Expert: Supreme Court Case on Patenting Human Genes Will Likely inflict "Devastating Harm on the American People"
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We represent women, real women, who have a family history of breast and ovarian cancer that led their doctors to tell them that they should have their genes looked at. It’s almost as simple today as having your temperature taken by a thermometer. To do it, you actually have to withdraw blood from the patient, and you just run it through a machine, and the machine prints out the answers for you. It’s not very difficult at all. In the near future, most patients will likely have their entire genome mapped so that they can understand what diseases they’re at risk for.
The patent holder, in this case, wasn’t letting anyone else do that or offer that service, even to poor women who couldn’t afford their test, because they were making super-competitive profits. They were charging ten times as much, if not more, to do the test than it actually cost to do. They had no sympathies if a woman wasn’t capable of affording it. As you mentioned, they wouldn’t let women even who paid them to take the test, if they wanted to get a second opinion from a different lab, from a different person doing the analysis, the patent holder wouldn’t let them do that. Women had to make very life-altering decisions about prophylactic surgeries, to either undergo or not undergo, based on just this one company’s opinion about their genetic code. We have proof that they had given patients both false negatives and false positives in the past, which is not necessarily because they’re bad guys, it’s just because in all things medical there can be mistakes and errors. That’s why we need second opinions. It’s because of their aggressive use of these patents to impede on women’s rights, that’s why we took the case.
SR: I’ve read, in some of the business press, like ‘corporate counsel’ columns, that the patent bar was baffled that there would be a civil liberties argument here. Indeed, in your brief, you say that there are First Amendment violations, and I think there’s also Article 1, Section 8, Clause 8. What are those constitutional infringements?
DR: The Article 1, Section 8 issue is that granting these patents violates the Constitution in that they don’t promote progress. They actually deter progress by granting a monopoly over a fact of nature to one entity. The First Amendment breaches come in because these patents can be used to impede the speech between doctors and their patients. It also impedes upon thought, because these patents are so broad that if you merely recognize that someone does or does not have an alteration in one of these genes and then correlate that to the risk or lack of risk for early-onset aggressive breast and ovarian cancer, you’ve infringed their patent just by having that thought. So the government is now granting patents, making it illegal to think certain thoughts, to think about science, to think about knowledge, and that impedes upon the First Amendment.
SR: It’s like a prior restraint in a sense?
DR: The government acts… A lot of people try to say, ‘Well, this is a private company.’ The government is an actor here that is granting… Every Tuesday there are 4,500 things you’re no longer allowed to do, because the patent office granted 4,500 patents every Tuesday. There is insufficient checks and balances to ensure that when they do that, it is justified. They have a financial conflict of interest. The patent office makes 10 times as much money when it grants a patent as opposed to when it denies it. So there are all sorts of problems with our patent system, which have caused it to create real serious negative harms to the public, like in our case.