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In the case of a baseball bat, Roberts pointed out that “you have to invent it” and not just “cut it off” from the tree, a remark that seemed directed at Myriad’s cutting away the gene from strands of human DNA.
The top court, as is customary, did not indicate which way it would rule, and observers predicted that the justices might seek a middle ground that does not definitively allow or ban patents on genes.
For Jewish ethicists, of course, there are quite different issues at stake.
Rabbi David Teutsch, director of the Levin-Lieber Program in Jewish Ethics at the Reconstructionist Rabbinical College, said Jewish values dictate a balancing act between opportunity for individuals and healing for the community as a whole.
Teutsch said the Myriad case starkly poses the question, “How do we provide enough profits to researchers while guaranteeing open access to the results of that research?”
The two goals should be weighed against each other. But ultimately, Teutsch asserted, access to healing should trump private profit.
“If a very narrow interpretation of patented property rights is applied here, we’re not going to fulfill the value of maximizing healing,” he said. “The desire to maximize profits should not be allowed to trump maximizing healing.”
Arthur Caplan, head of the Division of Bioethics at New York University’s Langone Medical Center, asserts that the patent on the BRCA gene has done more harm than good when it comes to research.
“People have found more mutations, other genes have been found that influence cancer risk, but much more slowly than would have happened had there not been this patent,” Caplan explained.
He said Myriad may have a stronger case in its claim for a patent on the test for the BRCA gene than for the gene itself.
Caplan compared the genetics company to Galileo, who invented the telescope that he then used to see the moon and stars. The Renaissance scientist would have every right to a patent on the telescope, which he created, Caplan said, but not the celestial objects, which were there all the time.