The Commons as Accumulation Strategy

Abstract

DOI 10.1215/01642472-7370967 © 2019 Duke University Press On June 13, 2013, the US Supreme Court unanimously ruled that isolated, unmodi ed DNA cannot be patented, in the case of Association for Molecular Pathology v. Myriad Genetics, Inc. — a case that has been called the Brown v. Board of Education of genetic science.1 The Court’s decision struck down biotech company Myriad Genetics, Inc.’s near twentyyear exclusive patent rights over the biological substance of the BRCA tumor suppressor genes, popularly called the “breast cancer genes” due to their association with elevated breast and ovarian cancer risk. The cluster of patents Myriad had acquired in the mid1990s gave the company rights to all potential uses and prospective values of the genes, providing the corporation with a legal monopoly over the use of BRCA genes in cancer research, diagnostics, and treatment for twenty years (expiring in 2015). Unlike other biotech companies that have collaborated with advocacy groups and medical researchers, Myriad aggressively enforced its legal right to exclude others from accessing, researching, or testing for BRCA gene mutations on a national and international scale.2 The description of Myriad as the Brown of genetic science referenced the unusual civil rights – based framing of the patent case, as it focused explicitly on the segregating in uence of patents on scienti c research and patient access.3 US patent law has generally limited its purview to highly technical economic issues that are addressed by research institutions, corporations, and lawyers who are seen to “represent the interests of citizens by representing the interests of innovation and the market.”4 In Myriad, however, researchers, citizens, and legal counsel challenged the The Commons as Accumulation Strategy