Fight against gene-testing patent is the right move for B.C. women

While B.C. Health Minister Colin Hansen wants our province to be business friendly, the feeling is not always mutual.  As Hansen is finding out, business is not always friendly to B.C.

Take the example of Myriad Genetics, based in Utah.  They own the patent to two genes found in women who are susceptible to breast cancer.  More precisely, Myriad owns the patent on the gene sequences — the blueprint of the genes.

brca

The genes that indicate a higher risk of breast cancer are called (appropriately) BRCA 1 and BRCA 2.   Testing for these genes is an important part of treatment.  If a woman has these genes, she can maximize her chances of survival through changes to her lifestyle, diet,  and through early detection.

Myriad also owns the patent on the test that detects the genes.  Until recently, B.C. has been testing women for the genes but stopped because Myriad has threatened legal action.   B.C. can do the test for about $1,200 but Myriad says it’s their test and they should do it for $3,500.  Myriad needs to extract their profit.

Health minister Hansen doesn’t like the way Myriad does business.  “There is maybe merit in patenting the applications of how we use gene sequencing, but to actually patent the sequence is something I certainly have great difficulty with,” said Hansen, adding that he not going to pay the inflated cost of the test.  Hansen is not the only one who has a problem with the patent.

“Women at risk are being held hostage and in danger by a private for-profit medical system,” say Ira and Gerri Withler in their letter to the Kamloops Daily News (Patent Holds Women Hostage, Oct. 28).  The Withlers think that there is an option.  Health minister Hansen could simply ignore the legal threats, as Ontario is.  Take the moral high ground — do the tests that save lives of patients.   Ontario is doing the tests in defiance of Myriad’s legal claims.

Myriad’s patent claim defies logic and may not even be legal.  It’s not like they invented anything new.  The genes that indicate the possibility of breast cancer were not invented by Myriad.  BRCA 1 and 2 have been around for hundreds, perhaps thousands, of years.  Nor did Myriad always have a patent on the test.

Myriad is grabbing everything it can.  They also hold 99 monopoly gene patents including ovarian, colon and prostate cancers.  But Myriad is not the only business to claim rights to body parts.  Nearly 10,000 patents relating to the human body have been filed worldwide.

The legality of Myriad’s patent may not even stand up to a patent challenge by B.C. to the World Trade Organization.  The relevant WTO agreement is the Trade Related Intellectual Property Rights agreement, signed in 1995.  Patents are based on the concept of intellectual property.

“Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time,” says the WTO (www.wto.org).

Intellectual property falls under two categories — artistic creations and industrial property. “The main social purpose of protection of copyright and related rights is to encourage and reward creative work,” the WTO says.  These are fine ideals.  In addition, intellectual property includes “trade marks, inventions, industrial designs, and trade secrets”.  Fair enough.

“Governments can refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality. They can also exclude diagnostic, therapeutic and surgical methods, plants and animals (other than microorganisms), and biological processes for the production of plants or animals (other than microbiological processes),” says the WTO.

The primary responsibility of the Government of B.C. is to its citizens, not to corporations. The Liberals are doing the right thing by taking legal action against tobacco companies.  This is an initiative of the NDP government to recover the medical costs of treating cancer caused by smoking.

The B.C. Liberals could legally argue that testing for BRCA 1 & 2 are a diagnostic test, and that Myriad should have never been granted a patent in the first place.  In doing so, they would demonstrate their intention to protect British Columbians against big business.  Health Minister Hansen should be acting in our best interests, not Myriad’s.

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