Should new medical tests from biotech be patent protected?

Source: "Lawsuit attacks patent giving company control over genetic test for cancer risk," Kari Lydersen, The Washington Post, March 2, 2010

A lawsuit has been filed claiming that Myriad's exclusive right to conduct tests for a specific mutation (which increases risks for breast and ovarian cancer) is unconstitutional.

The plaintiffs' attorneys, from the American Civil Liberties Union and a nonprofit called the Public Patent Foundation, hope the case will redefine how patent law is applied to genetic testing and research. They say that Myriad's patents on the isolated BRCA sequences impede research and women's access to their own genetic information through testing.

Comment: Clearly the BRCA sequence is a product of nature. The incrimination of the BRCA sequence as a risk factor for cancer would seem to be a scientific finding that should be in the public domain. On the other hand, the test for the BRCA sequence would seem to be sufficiently like other diagnostic tests to fall under patent protection laws, and indeed the epidemiological finding of BRCA implication in cancer risk might not have been possible without the diagnostic test.

The corporations maintain that without the incentive of high prices for the BRCA test ($3,120 in the example cited in the article), firms would not do the research and development to make such tests available. Experience indicates more willingness of corporations to fund R&D for commercial gain than of governments to fund R&D for the public good, so the corporate argument has some merit.

I guess I come down on strict application of term limits for patent protection and simplification of the processes which allow generic makers to market "me too" products after patent protection runs out. That policy works best if there is good health insurance available to all to assure that where public policy calls for tests to be applied, everyone can afford to have them done!