Top U.S. court to decide who can own your genes

When you have blood taken, or a biopsy done, or any other medical procedure that removes a piece of you that contains your DNA (which is any piece of you, by the way), do you still own that genetic information? That's the question that's currently going in front of the U.S. Supreme Court, and the answer that they come up with will have a big impact on doctors and medical researchers.

For nearly 30 years, companies have been allowed to take out patents on human genes, and it represents a multi-billion dollar business. Myriad Genetics, the company that owns the two gene patents that are currently going before the Supreme Court, apparently has half a billion dollars tied up in just those two.

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"Countless companies and investors have risked billions of dollars to research and develop scientific advances under the promise of strong patent protection," said Myriad president and CEO Peter D. Meldrum, in a statement last Thursday.

According to a Slate.com article linked to from the Duke Institute for Genome Sciences and Policy, the specific genes, called BRCA1 and BRCA2, were identified by Myriad's founder as being associated with higher risk of breast cancer in women. Myriad took out 20-year patents on the two genes and then developed a test to detect them, and because of the patents they held, no other researchers could work with the genes to develop alternative tests, so Myriad held a monopoly — and apparently an expensive monopoly at that.

Myriad's patents have been challenged before, according to CBC News, and the chain of court cases and appeals — from a U.S. district court to a federal appeals court to the Supreme Court — have resulted in flip-flopped decisions and the case being thrown back into the loop again. It has since worked it way up again, from the lower court to the federal appeals court and back into the hands of the Supreme Court.

Based on what they've already said on the issue, the Supreme Court seems to be of the opinion that artificially-created genes and DNA can be patented, but you can't patent naturally-occurring things. That seems perfectly reasonable. Myriad's basis for the patents though, and why the federal appeals court has been siding with them on this issue, is that the isolated genes are a "distinct chemical entity" compared to when they are found in the body, because they would not be naturally found separate from a person's DNA.

An interesting retort to this is quoted from ACLU lawyer Christopher A. Hansen's court papers by CBC News: "Under this theory, Hans Dehmelt, who won the Nobel Prize for being the first to isolate a single electron from an atom, could have patented the electron itself. A kidney removed from the body (or gold extracted from a stream) would be patentable subject matter."

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The fundamental questions behind all this: Who owns your genetic information? Is it fundamentally yours? Do you have control over it at all times, even when it's not inside your body?

Perhaps the biggest one, and the one that cuts to the root of the issue: What constitutes 'naturally-occurring' as opposed to a 'distinct chemical entity' when it comes to our bodies and how everything inside us functions? These genes certainly do not exist separate from the DNA molecule when they're inside us, but does that change the fact that they are a naturally-occurring part of us?

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