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FEMINIST CHALLENGE TO GENE PATENTS 667

information itself could not be directly claimed under the genes were sequenced. Myriad’s patents excluded
Section 101, patents on “isolated DNA” became a other scientists from isolating the genes and ana-
useful rubric to reward the first to sequence the gene. lyzing them to study other medical conditions, how
Judge Lourie expressed this perspective, stating, “We they interacted with other genes that might also be
recognize that biologists may think of molecules connected to breast and ovarian cancer risk, or any
in terms of their uses, but genes are in fact materi- other clinical or academic work. The patents’ exten-
als having a chemical nature and, as such, are best sive reach prioritized the identification by Myriad of
described in patents by their structures rather than genetic information over the subsequent use of that
their functions” (31). The legal dispute thus also information to develop other practical applications,
became a fight over which branch of science should such as new tests, tools, or even further knowledge
govern the understanding of the patented DNA. about the genes and human health. In doing so, the
Fourth, designating “isolation” of the gene as the patents certainly incentivized commercialization of
central criterion for invention obscured the contri- the gene by the patentee but discouraged all others
butions of many others in the scientific community, from working with the genes. One consequence was
while also devaluing any subsequent work that that many researchers in the field, including Mary-
would or could be done with the gene. Because of Claire King and the UK team, were then forced to
the focus on the mental origins of invention, patent engage in gene patenting, even though they opposed
law “implicitly assumes a lone, extraordinary indi- these intellectual property rights, in order to ensure
vidual to be the source of new inventions” (43). Yet, that others would not obtain patents that would pre-
Dr. Mary-Claire King first hypothesized a hereditary clude their work. The USPTO policy likely resulted in
link to breast and ovarian cancer and toiled for years numerous patents that would not otherwise have been
with her team to discover the gene or genes that might sought while simultaneously depressing patenting on
be involved. When she announced the discovery of downstream applications of the gene discoveries.
a gene on chromosome 17 correlated with cancer The litigation drew on feminist analytical methods
risk in 1990, she had identified the locus of the gene to expose the ideologies and values embedded in the
but had yet to pinpoint its sequence. Based on her USPTO’s policy of granting patents on isolated DNA.
research, scientists around the world began their It challenged where the lines were drawn by asserting
efforts to sequence the gene. Meanwhile, scientists the patients’ interests in ensuring that their genetic
believed there was a second gene connected to hered- information remained part of “nature”—not appro-
itary breast and ovarian cancer risk. A team in the priated by patent regulation—and that the discovery
UK led by Dr. Michael Stratton at the Institute for of the gene did not foreclose important scientific
Cancer Research and the Sanger Centre worked with advances based on that knowledge.
Myriad to sequence it; however, once Dr. Stratton
learned of Myriad’s plans to patent the genes, he CONCLUDING OBSERVATIONS
ended the collaboration (22). Myriad filed a patent The Myriad case was a patent litigation brought
application based on identifying the BRCA2 sequence specifically to promote women’s access to their own
a day before the publication of the BRCA2 sequence genetic information as well as the larger public inter-
in Nature magazine by the Stratton team. While the est in preventing monopolization of the genome.
prevailing view in the scientific community is that Women served as plaintiffs, and their experiences as
the Stratton team first sequenced BRCA2, Myriad patients shaped how the legal arguments were framed
was the first to patent it. and understood by the courts and other stakeholders.
The USPTO’s focus on isolation not only ignored The immediate result of the litigation was to increase
the foundational work done by other scientists in genetic testing options for patients and to lift barriers
identifying the possible existence and locations of to research, with many new labs committed to sharing
genes connected to hereditary breast and ovarian variant data with the scientific community (53,54).
cancer, but it also precluded these same and many The litigation also changed patent law by revitaliz-
other scientists from building on their work once ing the product of nature doctrine. After the Supreme