Expert: Supreme Court Case on Patenting Human Genes Will Likely inflict "Devastating Harm on the American People"
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(Editor’s Note: Last week, the Supreme Court decided to hear an intellectual property case where it will decide whether human genes can be patented. The case started several years ago when the Public Patent Foundation filed a lawsuit with the ACLU challenging some patents that concerned genes affecting breast cancer and ovarian cancer. Daniel Ravicher is one of the lead attorneys on the case. He was interviewed by Steven Rosenfeld for AlterNet radio.)
Steven Rosenfeld: Daniel, first, congratulations for having the Supreme Court take the case. Were you surprised?
Daniel Ravicher: Well, thank you for having me on and thanks for the congratulations. No, we weren’t surprised that the Supreme Court agreed to hear our case because the lower court had come to such an incorrect decision. In fact, the lower court decision was a split decision amongst three judges. That was even further proof that the lower court decision was not correct.
SR: As your brief says the key central question is, ‘Can genes be patented?’ When you get into the brief, you have some really interesting language, where you talk about the laws of nature versus what I would call the products of man. Talk about that distinction.
DR: Well, the Constitution gives Congress the power to grant patents to inventors in order to promote progress. The theory is that if we grant patents to people who come up with an invention that will incentivize people to create these inventions.
It’s always been understood that if you were to grant patents on things that God gave us, the laws of nature, E=mc2, or natural phenomenon, like gold or water, that would be too much power given to the patent holder. They then can use that patent to exclude other people from making or using the covered thing. So there’s a line between that, what God gave us, that cannot be patented and that, what humans make. Now of course, everything a human makes comes from what God gave us, right? Humans don’t create materials out of thin air. They change what’s been given to us. So there has to be enough of a change from what we were given by God to what we’ve actually created with human ingenuity.
SR: Now in this case, you have a company, a biotech firm that has isolated two genes that are used to identify whether a woman is likely to have breast cancer or ovarian cancer. In your brief, you discuss not only how they’ve sought patents for these but in the application and use of these, they’ve actually prevented other researchers from studying these genes. They’ve prevented women from getting second opinions based on other tests that cannot be developed that are tied to using these genes. Talk about why that is, first of all, a constitutional violation and why it’s just so offensive.
DR: Let’s remember that these patents were granted by our federal government. Some bureaucrat in the Washington DC area decided that it was smart to give one company the exclusive control over the patented thing and eliminate every other American’s right to do that thing. In this case, the patent holder claims to have been the first entity to realize that if you have certain mutations in a couple of different places along your genetic code in every cell of your body, then you’ve got an increased risk of breast or ovarian cancer.
The vast, vast majority of breast cancer is not genetically caused. It’s through environmental and behavioral decisions of the woman or man. Men can also get breast cancer. But there is a small percentage of people who can get breast cancer because they received genetic mutations from one of their parents. In fact, that type of breast cancer is generally much more aggressive and begins much earlier in life. So this is critical information, and because there’s no exception from patent infringement for fair use, unlike in copyright law and trademark law where we do have exceptions for fair use or the exercise of constitutional rights, there’s no constitutional exception in the patent laws. Any making or using of the patented thing is infringement.