Your Body, Their Property

Polio ravaged much of the United States during the 20th century, leaving thousands sick, paralyzed, and dead. Those who were not afflicted with the virus were constantly haunted by the terror that their loved ones—particularly children, who were most vulnerable—would awaken one morning unable to walk and destined to a life of leg braces and iron lungs. That is until 1953, when Jonas Salk created a vaccine. There were more than 45,000 total cases of polio in the United States in each of the two years before the vaccine became broadly available. By 1962 there were only 910. Salk’s invention was one of the greatest successes in the history of American public health.

Amidst the adulation and fame that came with saving untold numbers of lives, Salk did something that seems curious if not unwise by today’s standards: he refused to patent the vaccine. During a 1955 interview, Edward R. Murrow asked Salk who owned the patent, leading a seemingly bewildered Salk to respond, “The people, I would say. There is no patent. Could you patent the sun?”

These days, amid a patent-driven biotech boom, it is difficult to imagine a researcher making a similar appeal to the commons. But this sensibility received a crucial endorsement in the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics. The Court held that Myriad, a biotech firm in Utah, could not patent naturally occurring objects such as the two cancer-related human genes in question.

The decision upended many aspects of American intellectual property law that emerged in the wake of Diamond v. Chakrabarty (1980), when the Court held that living organisms—specifically, manmade crude–oil bacteria—are patentable subject matter. Chakrabarty inspired a rush to patent not just living things but also a growing array of biological materials, including human genes.

Fast-forward a few decades and almost one-fourth of all human genes had been patented and controlled by private hands. This made it expensive for scientists to do research implicating these genes or to develop tests that examine how certain mutations might affect health outcomes. Until Myriad the sensibility evoked by Salk—that entities beneficial to all humankind should not be patented and privatized—had largely been treated as a distant memory of a bygone era, like the jukebox or rotary telephone.

However, Justice Clarence Thomas eloquently set the record straight in his unanimous opinion for the Court in Myriad by contrasting the company’s patents to those upheld in Chakrabarty: “Myriad did not create anything. . . It found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.” Now, many existing human gene patents are in question.

It is rare that a legal dispute of this importance, technical complexity, and jurisprudential nuance is resolved by the Court with such clarity, conviction, and common sense. Yet even after Myriad, the dispute over who can claim property interests in human biological materials, and in what circumstances, is far from over. Human gene patents are not the only means by which corporations and researchers assert rights to parts of human bodies, and many more legal reforms are needed to ensure that your body remains entirely yours.

by Osagie K. Obasogie, Boston Review | Read more:
Image: James Butler