Patent Law and Women’s Health

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The ACLU has helped organize a lawsuit challenging a decision by the Patent & Trademark Office granting Myriad Genetic patent rights to two genes that are closely associated with increased risk for breast cancer and ovarian cancer, and on the testing that measures that risk for individual women. The NYT account notes:

… The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case.

Companies like Myriad, based in Salt Lake City, have argued that the patent system promotes innovation by giving companies the temporary monopoly that rewards their substantial investment in research and development. …

… The coalition of plaintiffs argues that gene patents actually restrict the practice of medicine and new research.

“With a sole provider, there’s mediocrity,”said Wendy K. Chung, the director of clinical genetics at Columbia University and a plaintiff in the case.

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.

Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged.

Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad. …

The case is captioned Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al. and an ACLU press release is here. A copy of the Complaint is here. More information and links to other documents can be found here.

ETA Feminist Law Prof Eileen Kane published an article relevant to this topic in 2004.

–Ann Bartow

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4 Responses to Patent Law and Women’s Health

  1. bob coley jr says:

    So glad to see this post. The subject was discussed on the Today show this morning. The argument for patent ability and research seems to contain a threat that makes us all hostages. If private sector actors will only invest in an outcome that falls above an arbitrary line of profit margin set by a board of directors , the money needed to save lives, the research advance and knowledge should be funded and owned by our government (US), thereby the people that value life before profit. It is foolish to let a bunch of guys in a tower office decide whether I live or die based on the benefit to them. This will make it to the SCOTUS soon I think.

  2. bob coley jr says:

    After reading my previous comment, I felt it did not express my point in a clearly articulated way. So, lets be clear about what I was trying to say. Private v. public? Since neither side is always the best way forward, my point is it behooves us to seek balance case by case, especially when lives are at stake.

  3. Stephanie Farrior says:

    In addition to the incisive analysis of the subject by Professor Eileen Kane (PhD, Molecular Biology; JD) already noted by Ann in this post, Kane has an additional article on point: Molecules and Conflict: Cancer, Patents, and Women’s Health, available here.

  4. Ann Bartow says:

    Thanks, Stephanie.

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