March 26, 2013
Supreme Court May Decide Whether We Own Our Genes
Brett Smith for redOrbit.com — Your Universe Online
They may be responsible for everything in your life, from conception to death, they may be inside every living cell in your body — but you do not own your own genes, legally speaking.
The legal standing of genomic patents could change next month when the Supreme Court reviews patent rights for two key breast and ovarian cancer genes, BRCA1 and BRCA2, which include segments of genetic code as small as 15 nucleotides, known as 15mers.
"This is, so to speak, patently ridiculous," said report co-author Dr. Christopher E. Mason of Weill Cornell Medical College. "If patent claims that use these small DNA sequences are upheld, it could potentially create a situation where a piece of every gene in the human genome is patented by a phalanx of competing patents."
In their report, Mason and Dr. Jeffrey Rosenfeld, an assistant professor of medicine at the University of Medicine & Dentistry of New Jersey, looked at patents for two different categories of DNA fragments: long and short. They revealed 41 percent of the human genome is covered by “long” DNA patents that can include whole genes. Because many genes share similar sequences within their code that are patented, the combination of all these "short” DNA patents covers 100 percent of the genome.
"This demonstrates that short patent sequences are extremely non-specific and that a 15mer claim from one gene will always cross-match and patent a portion of another gene as well," Mason said. "This means it is actually impossible to have a 15mer patent for just one gene."
To reach their conclusions, the researchers first looked at small sequences within BRCA1 and noticed one of the company's BRCA1 patents also covered almost 690 other human genes. Some of these genes are unrelated to breast cancer — instead being associated with brain development and heart functioning.
Next, researchers determined how many known genes are covered by 15mers in current patent claims. They found 58 patents covered at least ten percent of all bases of all human genes. The broadest patent claim matched 91.5 percent of human genes. When the team took patented 15mers and matched them to known genes, they found 100 percent of known genes are patented.
Finally, the team also looked at “long” DNA sequences from existing gene patents, ranging from a few dozen to thousands of base pairs. They found these long sequences added up to 41 percent of known human genes.
"There is a real controversy regarding gene ownership due to the overlap of many competing patent claims. It is unclear who really owns the rights to any gene," Rosenfeld said. "While the Supreme Court is hearing one case concerning just the BRCA1 patent, there are also many other patents whose claims would cover those same genes.
“Do we need to go through every gene to look at who made the first claim to that gene, even if only one small part? If we resort to this rule, then the first patents to be granted for any DNA will have a vast claim over portions of the human genome,” he added.
Another legal question surrounds patented DNA sequences that cross species boundaries. The researchers found one company has the rights to 84 percent of all human genes for a patent they received for cow breeding.