Tuesday, March 30, 2010

Why Patents Matter To Everyone –Breast Cancer Edition

Two weekends ago when the Nor’easter hammered New York City, my husband and I were in New York for some family business. We wandered through the rain to meet some friends and have lunch and catch up. These are friends we’ve known since college with whom we can really talk about life and where it’s taken you. The real stories. Not the “everything is great” version of adulthood.

My friend is a breast cancer survivor. As breast cancer goes, she had a rough time. Tough surgeries and more of them than most women. A tough time with the chemo. Plus all the other stuff that goes along with being a breast cancer survivor – gaining weight, losing her hair, being tired, having chemo memory, the emotionally crushing personal and family emotional issues. She worked the whole time she was in treatment. She’s much tougher than me.

During the conversation we talked about pink ribbons, whether she was sick of seeing them and how the experience affected her family. Families who experience breast cancer have their own perspective on the healthcare system and breast cancer that the casual outside observer doesn’t have. She told me she was worried about her daughter. She mentioned that she had been tested for a particular gene mutation that is present in women with certain types of cancer. She is an Ashkenazi Jew. Ashkenazi Jews of Eastern Europe heritage are more likely to have gene mutations in the BRCA1 and BRCA2 genes. There is a link between these mutations and breast cancer and ovarian cancer.

My friend was talking about how she had been tested and things turned out well for her. She was shocked about how expensive the test was. Her insurance paid for the test but now she and her husband needed to decide if they should have their daughter tested. He is Sephardic, a Jew of Meditaranean descent. That improves the odds that their daughter might not have the mutation. The test cost over $3,000.

We talked about the test and the cost. As an aside she said, “I don’t understand why this test costs so much?”

“Patents.” It’s all about the patents. I explained that Myraid Genetics sells the test for the presence of the genes that indicate a predisposition for breast cancer. The patents are on DNA sequences from the gene. Myriad and the Univeristy of Utah owned seven patents on its BRCAnalysis test. They had a corner on the market. Not only do they perform the test but there would be no second opinion because no one else could do the test without violating Myriad’s patents. She asked a simple question, “How can you patent something in the human body?

This led to the whole discussion on discovery versus invention; and fairness, and science. Anyway, it was pretty serious stuff for a Saturday brunch so we moved on.

Yesterday the court answered the question when Judge Robert Sweet wrote in his opinion that the Myriad patents covered part of the natural world and therefore did not qualify for patent protection. The isolated DNA that Myriad discovered was a product of nature. According to the ACLU over 20% of the human genome has been patented.

It remains to be seen how all this will end up. Myriad’s stock went down 5.5% today, another indication that the loss of patent protection can be market moving. But one of the things that we know for sure is that everyone needs to understand the role that patents and innovation play in their lives and how these inventions impact us. The Judge’s opinion is a good read on the topic. (PDF).

By the way, a major decision that impacts a huge chunk of the genome domain, personalized medicine, woman with breast cancer, and moves the stock price of Myriad 5.5% in a single day and none of the major commentators included the patent numbers in their reporting or commentary so here they are:

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