Jewish Ethics and Biotech Innovation Clash in Supreme Court's BRCA Gene Case

Should Company Be Permitted to Patent 'Breast Cancer' Gene?

‘My DNA’: Lisa Schlager addresses protesters outside the Supreme Court. Many Jewish women may owe their lives to innovative new tests that uncovered their risk of breast cancer. But they strongly feel companies should not be allowed to patent genes.
courtesy of lisa schlager
‘My DNA’: Lisa Schlager addresses protesters outside the Supreme Court. Many Jewish women may owe their lives to innovative new tests that uncovered their risk of breast cancer. But they strongly feel companies should not be allowed to patent genes.

By Anne Cohen

Published April 18, 2013, issue of April 26, 2013.
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Lisa Schlager waited with hundreds of other women outside the Supreme Court in Washington on April 15, hoping to hear arguments over a private company’s effort to patent a human gene that is linked to breast cancer, especially in Ashkenazi women.

Schlager, 46, has a huge stake in the controversial case, as do thousands of Jewish women.

After testing positive for the BRCA1 gene at the center of the case, Schlager underwent ovarian and breast surgery to avoid an almost nine-in-ten chance of developing cancer. Like some so-called “pre-vivors,” Schlager opposes Myriad Genetics Inc.’s patent on the gene, which is under challenge in the Supreme Court case.

“God created my DNA,” said Schlager, an official with FORCE: Facing Our Risk of Cancer Empowered, an organization that seeks to promote awareness of hereditary cancers. “No company should have the right to patent what occurs naturally in my body.”

Not all Jews agree. Some point out that if pharmaceutical companies don’t have the financial incentive provided by the patent system, they simply won’t perform the kind of lifesaving research that Myriad did in isolating the mutated versions of BRCA1 and BRCA2 genes, which occur much more frequently in Ashkenazi Jewish women.

“If you want to promote the technology, what’s the best way to do that?” asked Rebecca Eisenberg, the Robert and Barbara Luciano Professor of Law at the University of Michigan. “I think this is an area where patents are important.”

For the Supreme Court, the case hinges mostly on the narrow question of whether the genes are naturally occurring and therefore not subject to patents, or if they are the product of human ingenuity, in which case they can be patented.

The American Civil Liberties Union and the Public Patent Foundation filed the lawsuit against Myriad in 2009, challenging the seven patents held by the company on the two genes. A federal judge ruled that the patents were invalid, a decision that was later overruled by an appeals court.

Justices cited more mundane products like baseball bats to argue into which category the gene mutations should fall. Both Justice Samuel Alito and Chief Justice John Roberts seized upon the suggestion made by Myriad’s attorney, Gregory Castanias, that a baseball bat doesn’t exist until it’s isolated from the tree.


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