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A Bad Week for Big Biotech: Supreme Court decision invalidating gene patents one of many recent major setbacks to the biotechnology industry’s control over life

Posted Jun. 13, 2013 / Posted by: Emma Hedman

Today many women’s rights groups, cancer patients, scientists, and concerned citizens celebrated an enormous victory in the Supreme Court: human genes can no longer be patented by big business!

As of this morning, over 20% of the human genome had been patented. In the case before the Supreme Court, Myriad Genetics owned patents on two genes (BRCA1 and BRCA2) that correlated with an increased risk for breast and ovarian cancer. These patents prevented women from getting a second opinion on their genetic diagnostic test to see if they had the BRCA1/2 mutations, and the patents prevented other researchers and labs from developing a more effective, more accurate, and more affordable test.

According to the Supreme Court, “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring.”The Supreme Court decided that genes themselves fall within the law of natural exception present in patenting laws, which stipulates that “laws of nature, natural phenomena, and abstract ideas […] are basic tools of scientific and technological work […] that lie beyond the domain of patent protection.”

This adds to the string of recent bad news for the biotech industry, which started with Friends of the Earth’s announcement that Target, Giant Eagle, H-E-B, and Meijer committed to not sell genetically engineered fish as a result of our Campaign for GE-Free Seafood, and continued with the unearthing of the GE Wheat Scandal in Oregon where GE wheat that was never approved for use by the USDA was found growing in a field, the release of two new studies and movement on policies to label GE foods at the state and national levels. The biotech industry’s attempts to control human, plant, and animal life for profit have been taking blows on all fronts.

Our announcement last week that Target Giant Eagle, H-E-B, Meijer have joined the nearly 60 retailers totaling over 4,600 stores nationwide that have vowed to not knowingly sell GE Seafood to continues to demonstrate the market rejection of what is likely to be the first genetically engineered animal approved for human consumption before it even hits the market and is a victory for the 91% of Americans that do not want to eat this experimental fish. That same day a new peer-reviewed study was published by the Proceedings of the Royal Society, which shows that GE Salmon can cross-breed with brown trout, a closely related species. Should this fast-growing, aggressive salmon escape into the wild, the environmental toll could be great.

The GE Wheat scandal is further proof that it is incredibly naive to trust the biotechnology industry when they say they can control living, reproducing organisms. Less than a week ago, a form of wheat not approved by the FDA nor sold commercially was found in Oregon, which resulted in key trading partners including Japan and Korea deciding to restrict wheat imports. This is not too different from what happened in 2000, when a type of corn not approved for human consumption contaminated corn destined for our tables, putting our food supply at risk and resulting in $288 million in food recalls and lost trade, harming thousands of US farmers. The same thing happened with a non-approved genetically engineered strain of rice in 2006, costing US exporters more than $1.29 billion. Genetically engineered crops are already routinely found in fields where they do not belong, including their insidious spread into the genetic motherland of corn, Mexico, where GE corn is vehemently opposed by local farmers.  The recent scandal serves to remind everyone of what unregulated GE technologies can lead to: contamination, novel food safety risks, and rampant economic losses for farmers who are already struggling to stay afloat.

In addition, there is growing evidence that Big Biotech’s genetically engineered corn and soy, which is present in the majority of processed foods but is unlabeled, could be harming our health. A new peer-reviewed long-term feeding study published June 11 in Organic Systems Journal found that pigs fed a combination of genetically modified soy and corn suffer more frequent severe stomach inflammation and enlargement of the uterus than those fed a non GE diet.

And today, Friends of the Earth Europe released results of a groundbreaking new study which revealed that 44% of European city dwellers, from 18 countries are contaminated with Monsanto’s potentially-dangerous herbicide glyphosate, commonly known as Roundup—and it is likely that Americans are being polluted at similar or higher levels given the widespread use of glyphosate in the U.S.

The movement for labeling of GE food, spurred on by such concerns, continues to gain ground -- 26 states from Maine to Washington along with members of Congress are acting to ensure consumers have a right to know whether they are eating GMO crops via labeling legislation and voter initiatives.

Finally we come to today’s victory, which is a huge triumph for those who wish to limit biotech corporations’ quest to own and remake all of life.

This case was brought to the Supreme Court by the Association for Molecular Pathology, assisted by organizations including the American Civil Liberties Union (ACLU) and Friends of the Earth, because the patenting of genetic material by the biotech industry confers unfair control over human health by entities that are more concerned about profit than people’s wellbeing.

According to the ACLU, Gene patents harm scientists by forbidding them to engage in vital genetic research without biotech’s approval and by charging exorbitant fees even when permission is granted; gene patents harm genetic counselors and medical professionals by infringing on their ability to inform patients about their future risk; gene patents harm patients by impeding access to essential information about their own health risks and by making testing and treatment prohibitively costly, and preventing second opinion testing; and finally gene patenting harms the general public because in the words of the official decision, they “impede the flow of information that might permit, indeed spur, innovation,” information that should remain in the public commons like our human genetic makeup

Friends of the Earth has taken an active role on the issue of gene patenting for years. We have been actively encouraging Congress to pass legislation that would ban the patenting of all naturally occurring genes and DNA sequences. We helped coordinate domestic and international campaigns on gene patents, along with our friends at the International Center for Technology Assessment, and joined ICTA’s amicus brief to the Supreme Court.   We also helped organize a rally in front of the Supreme Court during their hearing of this case along with the great folks at Breast Cancer Action, a plaintiff in the lawsuit. Therefore, we are very happy to see the court side with the people today, in this landmark case.

Erich Pica, president of Friends of the Earth, responded:

“This is a huge victory for patients, researchers and the public at large over the biotechnology industry which was trying to make profit off of the most basic facts of nature -- our genetic code -- and harming public health in the process.

“The US Patent and Trademark Office has granted patents to over 20 percent of the human genome, and as of today those patents are invalid. The Supreme Court has spoken loud and clear saying that genes are facts of nature and unpatentable, opening up our genome to researchers across the country to promote public health and free scientific inquiry. This decision also supports the basic legal tenant that one cannot patent and own facts of nature, which belong in the commons for all to benefit."

Erich Pica Speaks

The results of this case will slash costs dramatically for breast and ovarian cancer testing for women with genetic risk, who were charging over $4,000 for testing of these two genes even though scientists can now sequence all 23,000 human genes for only $1,000. This decision will also free the other 15,000 human genes that have been patented to researchers that want to do important work to identify other disease-gene and environment-gene interactions.

According to Sandra park of the ACLU, “When scientists identify something in nature, like an element or a gene, they deserve wide recognition. But what they find should belong to the public storehouse of knowledge, not be locked up by one company for its exclusive use. This is particularly true when millions of dollars in federal funding financed Myriad's search for the BRCA genes.” We need to be vigilant and able to respond to any attempts by the biotech industry to reverse this decision through Congress, but the decision of the courts represents a huge victory and should set a positive precedent for the future.

Friends of the Earth thrilled with these recent victories and will continue to fight Big Biotech’s control over plant, animal and human life and attempts to remake nature itself.

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