In June I am moving out of the apartment that I share with my roommate, Scientist Supreme, to live instead with the Dread Lord of Bakery and his girlfriend, War Scribe (all nicknames are at the discretion of the people being named and will be changed upon request). This is a good move, and while I will miss living with Scientist Supreme, she and I will remain friends and it’s time she moved ahead with her relationship.
Before I leave, however, I have decided that I will file a patent on this apartment, claiming it as my own and charging a fee on top of rent for anybody who wants to live here, or tour it, or so much as look for it. In fact, I think I will file a patent on all apartments with this particular floor plan and mount vigorous legal defenses of my claim against anybody who makes a 2 bedroom, 2 bath with a small kitchen, a storage closet, and a laundry room.
What? You think that’s ridiculous? Well, it’s apparently in legal contention at the SCOTUS as a drug company, Myriad Genetics, is fighting for their claim that they patented two genes that are involved in breast cancer, BRCA1 and BRCA2. No, they did not invent these genes. They found them and found out what they did. And that means, apparently, that nobody else can research these genes nor even search for them. Currently, Myriad charges $3000 for a test that costs them $200 to perform in order to check these specific genes, the expression of which could raise the risk of breast or ovarian cancer by up to five times.
And here is where libertarians piss me off.
No, that’s not a non sequitur. For all the bleating about “liberty” and “personal responsibility,” there is the idea that the government should not be spending money on research, private companies should because they are innovators and blah blah blah. But, of course, private companies are motivated entirely by profit, full stop, so they will go to whatever lengths they can in order to ensure the highest possible payout and restrict anybody else from cutting into that, even if it means running to the hated government for protection.
What we see here is a company that is willing to gouge its customers, who happen to be women that need to know if they have cancer, and do so on the premise that the discovery of something that is not rare and that they didn’t create means that they now have complete control over it, even if that means more people have to die unnecessarily to maintain inflated prices and a complete lack of competition.
I’m not against copyright law. Really, I’m not. I like artists and creators and actually am one. But the way that we currently structure protections for the creators of things is inhuman. The purpose of copyright, of course, was originally designed to encourage people to bring their ideas into the public by promising that nobody else could take advantage of their hard work for 28 years. That would give creative types almost three decades to make money, acquire fame on their efforts, and encourage them to create more stuff.
Of course, current copyright law protects a work for 28 years as well. And then through the life of the creator. And then 70 years after that.
So, a set of laws that were designed to get people to create things and release them to the public now incentivizes people to create things for almost an entire lifetime after they are already dead. As CGPGrey points out in the video, after you die, you’re not writing anything new. All the law does as it stands is protect the rights of people to continue to leech off of the creativity of often long-dead company founders.
But what’s most horrendous about the Myriad case is that they didn’t even make anything. Patents are supposed to be protection for inventions, not the discovery of things that already exist without human intervention. If they want to patent the method by which they discovered these genes and their connection to cancer, that’s one thing, but this idea that they can patent the gene itself is no less absurd that my suggestion above that I can patent my apartment.
This is also why I am of the firm belief that research should be a public resource. This is not to say that we should eliminate private research, but rather that the drive to eliminate public research by cutting science funding, reducing NASA budgets, and deriding every experiment that sounds silly at first blush (the people who are complaining about studying snail mating habits and fruit flies are the same ones who would have complained about studying moldy bread in 1928). If it weren’t for public research there would be no zippers, no microwaves, no edible toothpaste, and no internet, since there was no immediate profit available for any of those technologies when they were conceived. Without public funding, we will only find a cure for cancer when it brings in more cash than perpetual treatments would.
There is absolutely no reason why a company should be able to patent something they did not create and purposefully slow down the process of using that information to save people’s lives. They are like Tycho Brahe, dribbling observations to Kepler in the hopes that the younger astronomer might say something that would spark a breakthrough in Brahe’s thoughts. Only nobody died because Brahe wouldn’t share his measurements and he doesn’t get to claim ownership of the stars he recorded, especially not in death.
I hope the SCOTUS will rule against Myriad and eliminate this idea that human genes can be patented, but I sincerely doubt that will happen. Not with the Roberts Court, who is more than half enamored of everything business-related. Still, maybe there is a chance that something being technically limited doesn’t make it less functionally unlimited, and therefore is unconstitutional.
Unfortunately, I suspect that Myriad will continue having their stranglehold on even looking for these genes, and poor women will just have to resign themselves to getting cancer they could have avoided.