I think that this issue of patenting genes is not as black as white as you think.
Myriad Genetics is the company that first comes to mind. As you may know, they make a test for detecting the BRCA1 and 2 genes. Recently they lost the patent, but they are appealing.
They have spent hundreds of millions of dollars coming up with a test to detect a woman's increased risk of breast cancer, and IMO, they should have some patent protection on that.
I agree with you that you should not be able to patent a gene that someone has in their body. But what if someone (or some company) spent hundreds of millions of dollars figuring out that that gene (or a mutation of it) would increase someone's risk of breast cancer, and that would allow physicians to preemptively reduce that risk of a woman getting cancer (say, through a mastectomy)...
then shouldn't that effort be rewarded? Otherwise I would argue that a company would have no incentive to spend the money in the first place, if other companies could just take their hard-earned research knowledge and duplicate the test.
Same thing with generic drugs, imo. A drug company spends hundreds of millions to develop a drug, and then gets a patent on it, for a number of years. Seems perfectly reasonable.
I think part of the reason of the decision against MYGN was the argument that some other labs could not test for BRCA and could not help women reduce their risk of breast cancer... but if that process was discovered by MYGN, then I think they should be compensated for it. I have not looked at the patent history enough here to know if MYGN was the one to actually determine if the BRCA mutation increased risk in the first place.
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