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Two genes that are linked to breast and ovarian cancer (BRCA1, BRCA2) were patented several years ago by a firm called Myriad Genetics. This meant that the company had exclusive rights to use the genes to diagnose disease and to invent new therapies. They did accomplish the former but, sadly, not the latter.

The context changed dramatically late last month when a federal judge invalidated Myriad’s patent. This means that others can now offer the diagnostic test. It also frees any investigator to explore the potential of the genes as targets for new treatments.

Is this good or bad? As with much of contemporary life, the answer depends on where you sit. It’s probably bad if you reside at Myriad, or any of the other companies that hold about 40,000 patents encompassing 20% of the human genome. Their potential reward for investing in genetic research is diminished, and this could thwart future such investment.

The patent ruling is good if you’d like to offer the cancer-screening test at lower cost, or even for free, since many women can’t afford the $3,000 price tag. The decision is good if you can develop alternate interpretive methodologies that address the many subtleties and nuances of complex diseases. It’s also good if you have ideas about how to treat breast or ovarian cancer using these genetic targets but were inhibited previously because the whole territory was staked out by Myriad.

On balance I think the judge’s decision was a good one. Patents should be issued both to encourage innovation and to reward financial risk. Developing new treatments, drugs, or therapies fall in both categories; claiming nature as a discovery does not. If you don’t think so, just imagine if somebody had patented cows, lettuce, and tomatoes, and you had to pay a royalty every time you ate a hamburger.

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