Upstream patents and public health: the case of genetic testing for breast cancer

Abstract

Introduction The aim of this chapter is to explore the medical and health care implications of the growing tendency to grant patents on human genes. Taking the genetic testing of breast cancer as an example, we show how the granting of these large-scope patents, covering upstream scientific information, is likely to have very damaging consequences as far downstream as the health care system itself. In the second section we explain why the granting of this new type of “upstream” patent, exemplified by patents on genes, is so significant. We show that the major problem posed by these patents, which benefit from an extremely large scope, including “future” and “potential” applications, is that they are likely to give rise to widespread monopolies. This will impede the design and marketing of products developed using the same genetic information, with serious consequences not only for the future of research but also for the whole chain of medical practice. In the third section we use the case of genetic testing for breast cancer, linked to the BRCA1 and BRCA2 genes, to illustrate the issues raised by these new patents. In the case of BRCA1 and BRCA2, the private American firm Myriad Genetics has been granted several patents, providing it with a monopoly over the diagnostic and therapeutic activities based on these genes. We begin by describing how the granting of these patents enabled the firm to build a monopoly over every aspect of diagnostic activity in the United States.

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