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NEWS April 14th 2004
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Update on breast cancer genes: Patent granted on BRCA2 Cancer Research UK announced on February 11th 2004
that it had obtained a European-wide patent on the cancer susceptibility
gene, BRCA2. This update aims to provide a context for this development,
in order to understand why the patent was sought, the impacts it could
have and how it relates to the three patents granted by the European
Patent Office to Myriad Genetics, that Corporate Watch reported on previously
(see newsletter 17). However, as previously reported, Myriad Genetics of the US holds patents relating to BRCA2 and another breast cancer gene, BRCA1. These cover diagnosis, diagnostic kits and therapies This means that, while licences for further research into the BRCA2 gene may be granted freely, Myriad Genetics has control over testing for the gene. Indeed it has refused to grant licences for this purpose, saying that tests should be carried out in its private laboratories in Salt Lake City, Utah, rather than at much lower cost in public health laboratories in Europe. Legal challenges to its patents continue, while public health laboratories in Europe continue to perform tests at the risk of being sued. The new patent is unlikely to change the situation with regard to tests for BRCA2. Defensive patents demonstrate the problem we face very clearly. Those who oppose patents say that genes and living organisms are discoveries, not inventions and therefore should not be patentable, yet, as in this case, they may feel compelled to take out patents to protect the “territory” they seek to explore. Indigenous peoples never saw themselves as owning the land, yet felt compelled to claim title to their territories simply because others were taking them over. In fact, the race to patent human genes closely resembles the rush by colonial powers to build empires in Africa, Asia and South America. Our current economic system functions by creating fresh new worlds to “conquer” and then fighting to carve up and colonise them, a process that may begin with many companies competing for a share and may end with just a few players in what is effectively a cartel. In the case of genetics, the new world is the genome. “Valuable” genes (with apparently clear applications of interest to industry) are isolated from so-called “junk DNA” (whose function has not yet been identified), just as valuable ores are separated from dross. These commodities are then controlled for profit, through patents. A large patent portfolio is a valuable boost to a company’s shares, because of the potential profits from exploiting the monopolies they confer. The vast “new” world of genes is thus full of free-booters seeking profits for their shareholders through taking out patents. In doing so, they are shutting out, or at least obstructing genuine explorer scientists, who seek to understand rather than take over the territory. This means that immense areas of public interest, such as the human genome, never considered to be available for enclosure or privatisation, are being taken over for private profit through patenting. And the rejoinder that a patent gives no right to exploit and is moreover only granted for a number of years is misleading. A patent’s power, like any other form of private property, is based on the ability to exclude others. Patents also tend to push research in directions where profits are likely to accrue rather than where they are not. Limits on the duration of a patent do not prevent this distortion. So, while the fact that a public institution has obtained a patent on BRCA2 is to be welcomed, simply because it thereby prevents private interests from doing so, it should never have been necessary to spend time and public resources on seeking such a patent in the first place. Patents on genes and living organisms, “patents on life”, should be banned in the public interest. Main source for the information: and see links below at the end of this article: The Scientist with BioMed Central, February
13thCharity wins BRCA2 patent Genetics researchers welcome a decision
that will make the gene freely available in Europe Links for this article “Charities to make breast cancer gene
(BRCA2) freely available across Europe,” Cancer Research UK press
release, February 11, 2004. European Patent Office Peter Rigby Myriad Genetics R. Wooster et al., “Identification
of the breast-cancer susceptibility gene BRCA2,” Gert Matthijs European Society of Human Genetics GeneWatch |