Focus on the Courts: Gene Patenting

Last week, the Supreme Court heard arguments on the case Association for Molecular Pathology v. Myriad Genetics. This case has received national attention in large part due to the extremely personal issues being addressed by the court. In particular, this case attempts to grapple with the question “can one patent a part of the human body?” WRJ policy is not clear on this issue – which is why we’d love to fill you in and hear your thoughts! The plaintiff in this case is Myriad Genetics, a company that, over the last several years, has developed breakthrough and potentially life-saving technology regarding cancer research. In particular, it discovered that there are certain genes known as “BRCA1” and “BRCA2” that, when isolated, can be used as predictors of breast cancer. Having invested large amounts of time and money in this research, Myriad wants to now patent their “invention” in order to receive the monetary benefits from any clinical test that could result from the scientific advancement. The opposing argument is being represented by the American Civil Liberties Union. The ACLU and its peers believe that things occurring in nature, such as genes, cannot be patented, and worry about the precedent the Court could set by allowing a private company to stake a claim on a part of the human body. The ACLU is also arguing that, without the patent, other researchers can utilize the knowledge gleaned by Myriad to competitively drive further breakthroughs – and that a Myriad monopoly on this information could prevent others from doing future, potentially lifesaving research in an effort to protect their own profits. Jewish tradition acknowledges the validity of both sides of the argument. Mutations in BCRA1 and BCRA2 that indicate potential for development of breast cancer occur much more frequently in Ashkenazi Jewish women. Therefore, as a community, we have a vested interest in further research on this topic – which might sway us to oppose Myriad’s monopoly over the scientific process. However, we also are grateful for and would support further iterations of Myriad’s investment in the research which led to this enormous breakthrough – research that would be markedly less incentivized if companies knew they could not reap the potential benefits of future patents (though opponents of this argument would attest that patents limit innovation by refusing to allow fair and open competition and research). Jewish tradition as channeled through WRJ policy is equally divided. We support women’s autonomy over their own bodies, and believe that our bodies are gifts from God and not to be owned by other humans. On the other hand, we are inspired by Maimonides’ assertion that “God created drugs and compounds and gave us the intelligence necessary to discover their medicinal properties; we must use them in warding off illness and disease” (Maimonides Commentary on Mishnah Pesachim 4:9). A 1995 resolution urges “continued intense study and research on issues of women’s health” – a topic in which breast cancer research is surely positioned. How do you think this issue should play out? Should the Supreme Court side with Myriad and allow future patents to continue to spur innovation and life-saving research? Or should the Supreme Court come down on the other side and forbid a private company from patenting naturally occurring elements of the human body and broader world? Let us know how you think in the comments section below! And stay tuned on our blog for news of the Justices’ decision which will be coming down in the coming months!