Patents exist to protect inventors (and their investors) from those who would steal their idea for, say, a new cell phone charger and manufacture a cheap knock-off. But what happens when companies patent genes?

The longest running spat over gene patenting may be between agribusiness giant Monsanto and organic farmers. Monsanto, DuPont, and Syngenta together hold 53 percent of the commercial seed market worldwide, and Monsanto’s genetically modified “Round-up Ready” seeds are the norm on industrial-scale farms.

Monsanto says that because the company invested a great deal of time and money genetically engineering a seed that is resistant to its weed-killer, Round-up. Because it can produce more food per acre of land, Monsanto says they have the right to patent that seed. The problem is that seeds grow into plants, which create more seeds with the same patented genetic makeup.

So, Monsanto asserts that even if a farmer pays for Round-up Ready seeds, if he or she saves seeds from that crop to plant the following year without paying Monsanto again for the rights, it amounts to a crime. The company is suing 75-year-old Indiana farmer Vernon Hugh Bowman for buying and planting such second-hand seeds.

The U.S. Supreme Court is currently hearing arguments from both parties, but is widely expected to side Monsanto.

“Why in the world,” Chief Justice John G. Roberts Jr. asked, “would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”

Patenting a Breast Cancer Gene

The underlying issue—whether companies should be allowed to patent a living thing that can grow, mutate, and replicate on its own—is far from resolved. CNN reports that last week an Australian federal judge upheld a U.S. biotech company’s patent on the BRCA1 gene, which signals an increased risk of breast and ovarian cancer.

The judge said that because the process of isolating the gene for testing requires human ingenuity, the resulting isolated gene could be patented.

According to a news release from the American Civil Liberties Union (ACLU), “The U.S. Patent and Trademark Office (PTO) has granted thousands of patents on human genes—in fact, about 20 percent of our genes are patented. A gene patent holder has the right to prevent anyone from studying, testing, or even looking at a gene. As a result, scientific research and genetic testing has been delayed, limited, or even shut down due to concerns about gene patents.”

The Association for Molecular Pathology, the ACLU, and patient advocacy groups who brought the lawsuit say that by giving a single company the exclusive right to test for mutations on BRCA1, the test could be made prohibitively expensive. In 2011, the New York Times reported that the test cost $3,340, with a $700 supplemental test to achieve more accurate results.

Myriad Genetics, the company who owns the patent on BRCA1, says that about seven percent of breast cancer cases and 15 percent of ovarian cancer cases are caused by mutations on the BRCA1 or BRCA2 gene (Myriad also owns a patent on BRCA2). According to Myriad, patients with BRCA mutations have "risks of up to 87 percent for breast cancer and up to 44 percent for ovarian cancer by age 70."

Women, especially of Ashkenazi Jewish descent, whose close relatives were diagnosed with breast or ovarian cancer before age 50 are often for these mutations. By restricting who can test for BRCA mutations, patient advocates worry that women who qualify will not receive the test, and the personalized preventative care they may need.

Myriad countered that argument by saying they should be allowed to protect the product of techniques they’ve spent millions of dollars to develop. For now, Myriad Genetics is not enforcing their patent protections on BRCA1 and 2, but the U.S. Supreme Court will hear arguments from both sides on April 15.

It comes down to this: should companies be able to patent the building blocks of life—the seeds of staple food crops and the very genes that make us human? Should the results of vital healthcare research—even research financed by the private sector—be put in the public domain?

Make Your Voice Heard

Oral arguments before the Supreme Court are open to the public, so you can hear both sides make their case in The Association for Molecular Pathology vs. Myriad Genetics. The ACLU also has a Facebook community for opponents of gene patenting, and are circulating petitions in the lead-up to the court case.

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