The Myriad dispute concerns the discovery that two genetic anomalies, the BRCA1 and 2 gene mutations, each correlate with an increased risk of developing breast cancer and ovarian cancer. Ms Jolie reports that she has the BRCA1 mutation, which for her means an 87% risk of breast cancer and a 50% risk of ovarian cancer. Her mastectomy, she writes, reduced her risk of breast cancer to less than 5%.
I think Ms Jolie’s disclosure is brave, personal and refreshing. Here is a celebrity sharing with the world her personal turmoil and decision to undergo a mastectomy, and we should be supportive of her public disclosure. Ms Jolie’s personal issue, however, also supports the patent eligibility for the advances underlying the discovery that BRCA1 and 2 correlate with an increased risk of cancers. These are the types of inventions our patent system should be supporting.
The patent system is meant to support innovation and “promote the progress of science and the useful arts,” as expressed in the US Constitution (addressing both patents and copyrights). The discovery of genetic correlations with illness and development of treatments is something we all should be able to get behind. Don’t we want to incentivize discoveries that will address cancer diagnosis and treatment? How about for other illnesses too? The answer is that of course we all want these types of discoveries. And our Constitution gives us a way to incentivize these advances, and the incentive is called a patent – the inventor gets exclusive right to the invention for a limited period of time.
Ms Jolie notes in her op-ed that Myriad charges $3,000 for its genetic tests, thereby putting the test out of reach for many individuals. I agree that it is an expensive test, and certainly seems to be well above the cost of other genetic tests. As a general matter I believe that people (and companies too) should be able to recoup their costs of investment and make a reasonable profit for taking the risks of research and innovation. So while I cannot address whether the $3,000 number is fair or not based upon this standard, I do hope that BRCA1 and 2 testing is priced accordingly and that it soon becomes available to all who are in need regardless of financial circumstances. But whether the price is fair or not, it is obvious to me that the price of one particular test as set by one company cannot be the barometer for measuring whether an entire system of patents is in need of change – and unfortunately that is what the Myriad case has been reduced to in the public debate.
We need more innovation for improving healthcare and solving diseases that today are untreatable. We need more innovation to support the American economy. And we need to incentivize the next generation of researchers. All of this means that the invention at issue in Myriad should be held to be patent eligible.
So I say: kudos to Ms Jolie for her bravery and forthcomingness on this issue and making it public in such a valuable way. But I also say: kudos also to the researchers who gave her the opportunity to proactively deal with the family history of cancer, and kudos to the system that incentivizes these advances.
Thanks for reading.