Segments of human DNA are not inventions, and consequently the Supreme Court of the United States was right to decide last week that they are not patentable – in a case involving two genes, BRCA1 and BRCA2, which carry a high risk of virulent breast cancer; they have recently been in the news because of the actor Angelina Jolie’s mastectomy.
Canada remains in limbo on this matter. Rather than waiting for the results of prolonged litigation, the federal government – and Parliament – should seriously consider amending the Patent Act to clarify that patents are not to be issued for natural objects; on essentially the same reasoning, temporary monopolies cannot be issued for whole animal and plant species. Intuitively, most people who think about the question at all would not accept that they carry around in their bodies vast amounts of matter that can be legally turned into the exclusive intellectual property of this or that corporation.
On the other hand, synthetic or “complementary” DNA, altered in certain respects from natural DNA can reasonably be patented, as the U.S. Supreme Court has now recognized.
From 2001 to 2003, the successive Conservative governments of Mike Harris and Ernie Eves, trying to restrain health-care costs, were in a struggle with Myriad Genetics Inc., the patent-holder of BRCA1 and BRCA2 in both the U.S. and Canada, and its Canadian licensee, MDS Laboratory Services. The U.S. Supreme Court judgment is a good opportunity to revisit this dispute about the two breast-cancer genes.
That need not mean simply cancelling or confiscating the patents. If the two companies have not already made a comfortable return on their investment in these patents, it may be fair to continue patent protection for a while longer.
Specific test procedures may well justify intellectual-property protection, but the genes that have great influence on people’s lives and deaths are quite another matter.
The feelings of Canadians and indeed all human beings about their genetic inheritance and their bodies ought not to be dismissed as merely subjective. Flesh and blood are very different from commercial assets or manufacturing equipment. Human nature – even in seemingly minor slices – should not be treated as technology; it should not be patented.