The United States Supreme Court hears oral argument this Monday morning concerning the patentability of human genes, and the Association of American Physicians and Surgeons (AAPS) has urged the Court not to destroy incentives for private research. That would be the result if the Supreme Court issues a sweeping ruling in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., Sup. Ct. No. 12-398, declaring categories of medical discoveries to be non-patentable.
This lawsuit was brought by the ACLU and supported by the American Medical Association (AMA), neither of which is friendly to private enterprise.
Without patents, it would become impossible to raise the private capital necessary for life-saving medical innovation. But with patents in this field, scientists create new methods for isolating or modifying DNA. The innovations are then often licensed to others who make productive use of the inventions. If the Supreme Court tosses out patents for the isolation and use of human DNA sequences with a sweeping ruling, the effect will be to choke off investment in important parts of private medical research.
Congress already spent years hearing from medical experts, and properly concluded that patents should be available as an incentive for genetic discoveries just as they are for advances in smart phones and other technology. The Supreme Court should not overrule years of work by Congress based on this morning’s mere 65-minute oral argument and a limited legal record, argues AAPS in its amicus brief.
Rules of private property in our nation facilitated the beneficial development of land and buildings, and rules of patentability have done likewise for wonderful inventions. Yet this lawsuit by the ACLU seeks to turn genetic research into the equivalent of a public park, where it will be run by government and all private development will stop.
Breakthroughs in the use of adult stem cells, for example, have been made possible only by patent-motivated private investments, because the Obama Administration is hostile to this type of treatment. Government-funded research is restricted by political considerations and budgetary constraints. Much government-controlled research, notably in sequencing the human genome, has been vastly more expensive and less productive than private research.
Many groups, including Johns Hopkins University, known for its renowned medical school, filed briefs on AAPS’s side.
The case this morning arises from patents relating to isolated BRCA genes, which are important risk factors in breast and ovarian cancer. It takes billions of dollars to discover what causes cancer and what might cure it, but without patents that capital will be impossible to raise.
If revisions in current patent law are desirable, the ACLU and the AMA should go to Congress, where hearings can be held to probe issues of concern to patients, rather than seeking a sweeping, disruptive ruling from the bench. The Court should limit its ruling to the specific patents in this case and not invalidate thousands of other gene patents.
AAPS, which was founded in 1943, is a national organization representing physicians in all specialties.