Judge overturns Gene Patents

Gene patents are something few Americans think about, but they are something that may transform our lives in the coming decades. Under current case law, anyone who discovers a new gene can patent it. Anyone. Not the person who has the gene in their DNA. Many patients, while being tested for unusual conditions, have had their doctor patent their own genes, which are then sold to pharmaceutical companies so treatments can be created that are worth millions. The practice is defended because it takes millions to fund the research to find new treatments.

But now, a judge has overturned gene patents. This may change the face of genetic engineering and medical treatments.

In the ruling, U.S. District Court Judge Robert Sweet in New York state invalidated part of seven patents granted to Myriad on the BRCA1 and BRCA2 genes. In doing so, he might have changed the face of genomic medicine.

"This really goes to the fundamental question of 'Does the U.S. patent system work?' " says Richard Marsh, Myriad's general counsel. "We spent hundreds of millions of dollars until we broke even before we got (the test) out, to fund the research."

Without the patent on the gene, investors wouldn't have put in money to support Myriad during those lean years, he says. It's only now, when the company is actually making money, that people feel it's unfair. "Where were these people 10 years ago?"

The question of gene patents is not merely academic. They have been partially responsible for the advances produced by the DNA Revolution, by giving a profit motive for finding every disease-related gene out there. But they also restrict the scope of these treatments - companies discover ways to save life, and then deny them without exorbitant payments.

The decision that we make now may decide whether American stays at the forefront of genetic research. Or whether these advances ever reach the average citizen.

You know that right against self incrimination? Yeah, forget about that.

One of the fundamental rights is the right against self incrimination. One of the ways that we ensure this right is by making it illegal for the government to seize your DNA without a court order - essentially a warrant. And a warrant can only be granted if there is some reasonable cause that a judge accepts as valid. The exception to this rule is if your DNA is already in a public database for any reason (for example, if offered as a condition of employment for a Federal job). Now, it appears Minnesota is ready to ensure all citizens surrender this right at birth.

According to the Citizens Council on Health care the state of Minnesota has illegally collected and claims ownership to the DNA of 780,000 children and has provided the DNA of over 42,000 children to genetic researchers without parental consent. Their report goes on to say that approximately 73,000 children are born each year in the state of Minnesota and about 4,200,000 are born in the United States of America and all of them will loose their genetic privacy and DNA ownership rights if this trend in public policy is allowed to continue.

Minnesota treats this procedure as an opt out program where parents of the newborn infant do not specifically opt out of the process, the state presumes it has informed consent and the parents have elected to allow this to happen.

This amounts to at least two seizures by the State: (1) Right against search and seizure/self incrimination by making this DNA automatically available to authorities without a warrant, and (2) Seizure of property by eminent domain since in the future, your DNA may be valuable for research or commercial use. Isn't our Constitution supposed to LIMIT government? Maybe not in the age of DNA science. Gattacca, anyone?