Remember the gene patent rush? Companies dashed to call dibs on DNA, while citizens wrung their hands over genetic code as private property. Well, the patent party could soon be over. Early last summer, the American Civil Liberties Union spearheaded a lawsuit that challenges the right of U.S.-based Myriad Genetics to hold patents on BRCA gene mutations, diagnostic indicators of increased risk for breast and ovarian cancer.

At stake isn’t just Myriad’s slice of the DNA strand, but whether or not such material should be “owned” in the first place. “Gene patents prevent anyone other than the holder of the patent from conducting research on that particular gene,” reports Censorship News (Summer 2009). This biological monopoly dwarfs scientific innovation in more ways than one. The patents on BRCA mutations, for instance, mean that Myriad has a monopoly on testing for their existence—and charges a $3,000 fee for the privilege.

According to Technology Review online (May 27, 2009), supporters of gene patents tend to argue that without intellectual property rights, companies would have little incentive to validate genetic tests for diseases. Ultimately, though, people on both sides of the issue fail to consider that genetically diagnosing diseases is still an immature technology.

There are patents on 20 percent of human genes, biomarkers associated with everything from asthma to Alzheimer’s. Yet Myriad’s BRCA test is among a mere “handful” to be clinically validated. This suggests that, no matter the result, the ACLU’s case “misses the real issue, which is how best to push forward and clinically validate the thousands of biomarkers now languishing in databases.”

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Technology Review proposes a government-led project with a scheme for leasing testing rights to organizations willing to do the research. This public model would eliminate privately patented genes and, more importantly, spur research.