Guest Post By: Mary Steele Williams, MNA, MT(ASCP)SM, Executive Director of Association for Molecular Pathology
Earlier this summer, the Association for Molecular Pathology (AMP) spearheaded a sign-on letter with the American Civil Liberties Union (ACLU), ASHG, and a diverse community of approximately 200 medical, scientific, patient advocacy, women’s health, and civil rights organizations.
The letter expressed serious concerns with the recent draft proposal to amend Section 101 of the Patent Act, and warned about the significant consequences of allowing DNA and gene-disease associations to be patentable. ASHG and ACMG past and current leadership also sent out a letter to the bill’s sponsors expressing similar concerns. This month, ASHG caught up with Mary Steele Williams, Executive Director of AMP to discuss the history of gene patents and the current legislation.
ASHG: What would it mean for the genetics community if genes could be patented?
Ms. Williams: This proposal would have massive reverberations across all sectors of the genetics community. If naturally-occurring DNA sequences, segments or gene-disease associations become patent-eligible again, there would be serious consequences for research and clinical diagnostics. Legislation that allows the patenting of natural phenomena, laws of nature or abstract ideas would impede innovation by hampering discovery and the development of new technologies – because these aspects of nature cannot be designed or invented around. The clinical application of genetic research, diagnostic tests, and clinical services would be stymied. For example, multi-gene sequencing panels could require licensing arrangements for each gene or gene variant, which would significantly drive up costs for patient care. Even worse, testing could become unavailable altogether if owners refused to license at reasonable (or any) terms.
ASHG: What would it mean for the general public?
Ms. Williams: Patient care would become stifled, as we would return to the days when the basics of nature, our genes, and the mental processes of gene-disease association could be privately owned and restricted in access. Patent holders could choose whether a diagnostic test could be developed and by whom, and even influence its overall design. This could result in a test being offered by a single entity, an outdated version of a test being the only one available, or not being available at all. This was increasingly the norm prior to the 2013 Association for Molecular Pathology v Myriad Genetics ruling. Because gene sequences are not patent-eligible, a lot of amazing research and progress in clinical care is able to evolve and thrive, and it is critical that we protect this innovation.
ASHG: Tell us about the 2013 AMP v. Myriad ruling and its effects.
Ms. Williams: For over 150 years, the Supreme Court has held that laws of nature, natural phenomena, and abstract ideas are not patent-eligible under Section 101 of the Patent Act. In the landmark 2013 AMP v. Myriad case, a unanimous Supreme Court ruled in favor of the plaintiffs (AMP, et al.) and determined that a “naturally occurring DNA segment is a product of nature and not patent-eligible merely because it has been isolated.” The Court concluded that such patents would lock up genetic information and prevent others from scientific and medical work.
The Court’s 2013 ruling was the culmination of many years of deep concern within the medical field, and was celebrated across the greater scientific community who fought hard for the chance to be heard. The positive impact was immediate, and molecular testing is now part of the standard of care. On the day of the AMP v. Myriad decision, five laboratories announced their intention to develop BRCA1/2 tests. Since then, the clinical use of genetic tests and genetic research has continued to thrive. We are now approaching 10,000 multi-gene panel tests on the market with an average of 14 new molecular tests added each day.
ASHG: Why and how has this issue re-emerged?
Ms. Williams: Earlier this year, following a series of closed roundtable discussions, Senators Tillis (R-NC) and Coons (D-DE) and Representatives Collins (R-GA), Johnson (D-GA), and Stivers (R-OH) released draft legislation that proposed to radically alter Section 101 of the Patent Act. The draft language would shift the focus of Section 101 to favor those seeking patents by allowing patents on anything found to be useful. It explicitly indicates that judicially-created exceptions for abstract ideas, laws of nature, or natural phenomena cannot be used to determine patent eligibility. Essentially, the draft proposes to abrogate all court decisions that led to or supported those exceptions, including Mayo Collaborative Servs. v. Prometheus (2012), AMP v. Myriad (2013), and Alice Corp. v. CLS Bank (2014).
ASHG: What is AMP doing in response?
Ms. Williams: Since the draft was released, the sponsors of the legislation have stated that it was not their intent to allow patenting of “DNA within the human body.” However, this argument does not alleviate AMP’s concerns. The AMP v. Myriad decision was so important because it specifically determined that naturally occurring DNA sequences or segments are products of nature, and are not patent-eligible merely because they had been isolated.
AMP remains very concerned about the actual impact the draft legislation would have and the consequences of this evolving proposal, regardless of stated intent. The potential effects this legislation could have on research and patient care would be enormous and damaging. AMP anticipates that the next draft of the legislative proposal will be released sometime in the next few months. In the meantime, AMP continues to work diligently with aligned stakeholders, including ASHG, to lead efforts to educate others about this issue and advocate for naturally-occurring DNA sequences or segments and gene-disease associations to remain patent-ineligible.
Today, AMP is prepared to win this fight again. In this age of precision medicine, it is more important than ever to maintain the boundaries between nature and technology, so that we can continue to develop innovative diagnostics for devastating diseases and provide access to the best medical care. Since the Supreme Court’s 2013 decision, multiplex gene panels that feature dozens of genes in a single test are now routine practice. Advances such as this would have been difficult, if not impossible, without the Court’s decision. We must keep the focus on patients.
To stay up-to-date on this issue and more, be sure to subscribe to ASHG’s monthly policy and advocacy email updates.