The U.S. Supreme Court has begun deliberations in a case (The Association for Molecular Pathology vs. Myriad Genetics, Inc.) that has been cussed and discussed for years. Should Myriad Genetics or anyone else be permitted to own the exclusive rights to test whether an individual has genes that carry a higher than 50% probability of developing breast cancer? They invented the test. They patented the test. They profit from the test.
Critics have objected to Myriad’s claims that they hold the rights to any test for the presence of two genes, BRCA1 and BRCA2, associated with breast cancer…including second-medical-opinion tests. They own patents to a gene, it is argued, and that is wrong. (Their patent claims apply to the genes as they are synthesized outside the human body. The result is that nobody can read the sequence of any BRCA1 gene of anyone in America without Myriad’s permission.)
Secondarily, the argument has been about price. The monopolistic pricing power that comes with the granting of a patent has long been the concern of healthcare providers at least as it concerns makers of diagnostic tests.
Now, Angelina Jolie has bravely acted on information gleaned from the Myriad tests, and the fact that the publicized price point makes that test unavailable to the masses has triggered more debate in the lay press. And most articles still don’t discuss that fact there are alternative tests available that cannot be introduced into the market because of this patent…there may be some legs to the pricing story.
The fear at Myriad has to be that a patent case may become a reputation case, that winning a controversy with one form of intangible property will cause a significant loss with another.