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William A. Haseltine, who is a former CEO of Human Genome Sciences and was one of the first people to file for a patent on a gene, agreed with Caplan. He said patents should be granted only in cases where companies have invented a specific test or method, not simply discovered a gene like Myriad did.
“The variant itself is not an invention, but a discovery,” he said.
Haseltine asserted that the Myriad case is “very different from other uses of genes” in which patents have been granted.
“For example, if you use a gene for gene therapy, you’ve taken it out of its natural context and shown that it can be used for health purposes,” he said. “It depends on how you’re using the invention.”
Eisenberg countered that the top court should consider the impact of the ruling on future research. She pointed out that the purpose of the patent system is to incentivize innovation, which can ironically restrict the ability of others to duplicate that innovation.
“It is surely the case that gene patents promote investments in bioresearch, and it is also the case that they have provided an obstacle to research and certain kinds of testing,” said Eisenberg, who has lectured extensively on the role of intellectual property in biopharmaceutical research.
Amid the legal and ethical arguments, Jewish women are left in the middle.
On the one hand, many may owe their lives to the research that Myriad performed to isolate the BRCA genes. One in 40 Ashkenazi women carries this gene mutation, a much higher percentage than in the general population.
“I feel blessed that I was given this knowledge and ability to be proactive with my health,” Schlager said.
But they also may not accept that a private company should control access to the genes and the lifesaving tests to discover them.
“In some ways I do understand private industry’s desire to protect their investments,” said Schlager, whose organization contributed an amicus brief to the Supreme Court arguing against Myriad. “But at the same time, I have to say that DNA are naturally occurring in nature. It’s a natural part of my body. Myriad didn’t create my DNA.”