When a recent ruling invalidated parts of Myriad Genetics' patents on breast cancer genes BRCA1 and BRCA2, many investors panicked and stocks fell. Advocates for gene patents warned of losing investments in genetic research and impeding the progress of personalized medicine. While their arguments seem to be full of concern for public welfare, I can't help but hear the fretful whines of someone facing the potential loss of a lucrative monopolistic structure.
A gene patent essentially allows a company to setup a monopoly that hampers research and puts consumers at a disadvantage. For example, Myriad's patents prevent other researchers from comparing sequences of BRCA1 or BRCA2, in addition to developing new tests for breast and ovarian cancer that involve those genes. Furthermore, consumers cannot get a second opinion because only the patent holder can perform the tests on the patented genes. Of course, a company can choose to give out patent licenses (the case for cystic fibrosis and Huntington's disease). This is entirely up to the patent holder, so there is no reassurance that a patent will be broadly licensed.
A biotech company doesn't need gene patents to stay in business. There are many points downstream from genes that are potentially profitable. Gene patents will also become impractical, as it gets cheaper to test multiple genes at once or someone's entire genome. Think of the hassle of taking each and every gene patent into account.
It's odd that naturally occurring genes can be patented at all. Companies like Myriad argue that isolating and purifying genes make it patentable, but that's not the same as inventing genes. The ruling against Myriad may lead to dramatic changes in granting gene patents. It has already increased public awareness of an issue that will grow as genome research continues to advance.