New Legislative Effort Could Wipe Out Laws Preventing Gene Patents
June 2019 - Members of Congress recently released draft legislation to amend Sec. 101 of the Patent Act which permits issuing patents on new and useful processes, machines, etc. As currently written, this legislation is extremely concerning as it would establish a completely new patent eligibility framework and, as a result, would overturn significant Supreme Court decisions that have fostered affordable access to genetic tests including the AMP v. Myriad decision, which said that naturally occurring DNA sequences cannot be patented.
For over a century, the Supreme Court has held that laws of nature, natural phenomena, and abstract ideas are not eligible for patents. Recent cases from 2012-2014 (Mayo Collaborative Services v. Prometheus Laboratories, Association for Molecular Pathology v. Myriad Genetics, and Alice Corp v. CLS Bank) affirm and clarify these important exceptions to patent-eligibility.
These cases have created a legal foundation that promotes innovation. The Myriad case was especially significant for FORCE and the hereditary cancer community. Prior to 2013, Myriad Genetics held patents on two human genes–BRCA1 and BRCA2–mutations that are associated with significantly increased risk of certain cancers (breast, ovarian, prostate, pancreatic, and others). These patents gave Myriad a monopoly on the genes, and exclusive rights to testing of the BRCA genes–which stifled competition and resulted in exceptionally high costs for BRCA genetic testing.
If enacted, the legislation would wipe out prior court decisions and allow for the patenting of products and laws of nature, abstract ideas, and other general fields of knowledge. Whether intended or not, it would ultimately permit patenting of human genes and naturally-occurring associations between genes and diseases. This could drive up costs and hinder advancements in genetic testing.
FORCE and other concerned parties understand that there are problems with the current application of the law that must be solved, but narrower paths to addressing them are preferable to rewriting section 101 in its entirety. FORCE has participated in meetings with congressional staff about this issue and joined the ACLU, AMP and numerous other organizations in a letter expressing concern to the sponsors of this legislation.
Beginning June 4, the Senate Judiciary Committee is holding a series of hearings on the draft legislation and patent reform.
Update: September 2020
The bill is still active but movement has been slow due to competing priorities. We continue to follow this issue closely and will post updates as they are available.
7/1/2021 - Effective today, North Carolina's Medicaid program will cover genetic counseling and BRCA mutation testing for those who have "higher than average risk" for the development of certain cancers based on specific personal and/or family history of the disease.
6/30/2021 - FORCE added its support to a letter sent to Senate HELP Committee leadership urging the prioritization of diagnostics reform on behalf of the In-vitro Diagnostics (IVD) Reform Coalition and the communities it represents.
5/21/2021 - Joined the Defense Health Research Consortium in a letter asking House and Senate leadership to continue support for the defense health research programs funded through the Department of Defense (DoD) Congressionally Directed Medical Research Programs (CDMRP).