Patents

by Glyn Moody


Filed Under:
dna, gene patents, hipaa, patents

Companies:
aclu, myriad genetics



Myriad Genetics Refuses To Accept That People Have A Right To Access Their Own DNA Sequences

from the just-because-it's-your-genome,-don't-think-you-own-it dept

One of the biggest victories on the patent front was when the US Supreme Court finally ruled that naturally-occurring DNA cannot be patented. The company involved in this case, Myriad Genetics, didn't give up at this point, but tried to claim that despite this ruling, its patents on genetic testing were still valid. Fortunately, the courts disagreed, and struck down those patents too.

However, as we noted at the time, there's another issue that remains unresolved, which concerns the huge database of DNA that Myriad Genetics has built up over years of sequencing the BRCA1 and BRCA2 genes that have variants linked to cancer. Because of Myriad's unwillingness to provide that important data to the people whose DNA was sequenced, the American Civil Liberties Union (ACLU) has decided to take action:

On May 19, 2016, the ACLU filed a complaint pursuant to the Health Insurance Portability and Accountability Act ("HIPAA") with the U.S. Department of Health & Human Services ("HHS") on behalf of four patients against Myriad Genetics, a genetic testing laboratory based in Utah. The complaint was filed by patients who have experienced cancer, including breast and bladder cancers, or who are members of families with substantial histories of cancer.
All of the patients received genetic testing from Myriad Genetics in order to determine their hereditary risk for various forms of cancer and to guide treatment decisions. They later asked for all of their genetic information, not just the results, but Myriad refused to provide it. As the ACLU explains:
The patients want full access to their genetic information because they know that the understanding of genes and their variants is constantly evolving, and they want to be able to proactively monitor their own cancer risk and that of their family members as scientific knowledge and clinical interpretation of genomic information advances. Most importantly, the patients, many of whom have uncommon genetic variants, are concerned that Myriad controls much of the data about BRCA1 and BRCA2 genetic variants in a proprietary database. This impedes the ability of researchers to better understand whether these variants are connected with various types of cancer. The patients want to have the option of sharing their data with the broader research community.
The last point is key. Myriad is sitting on a wealth of information that might well lead to new treatments and even cures for the many cancers involved. Instead, it is asserting its proprietorial right over DNA that comes from other people. That's particularly egregious since the scientists who first sequenced DNA on a large scale were pioneers in data sharing. As early as 1996, laboratories taking part in the Human Genome Project not only agreed to share their data, but to do so immediately, and with no restrictions. Myriad Genetics' action is totally at odds with the ethos of sharing that lies at the heart of genomics.

As a blog post on the ACLU site notes, on the eve of the HIPAA complaint being filed, Myriad suddenly agreed to provide the information requested, but only on a "voluntary" basis. That is, it refused to recognize the broader rights of patients to their own genetic information. However, the ACLU believes that the law is straightforward here:

Patients are guaranteed access to their health information -- including their genetic data -- under HIPAA. In 2014, the U.S. Department of Health and Human Services amended the HIPAA regulations to make clear that all laboratories, which were previously exempted, are subject to this obligation. And earlier this year, HHS released guidance stating that with respect to genetic testing, patients have a right to access "not only the laboratory test reports but also the underlying information generated as part of the test," including "the full gene variant information generated by the test, as well as any other information in the designated record set concerning the test."
Let's hope this case leads to yet another defeat for Myriad, and establishes once and for all that DNA sequences belong to the people from whom they were obtained. That way they will be free to make data available to researchers for the benefit of everyone, not just for a few companies like Myriad Genetics.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    blogagog (profile), 13 Jun 2016 @ 5:15am

    Hey guys, I just patented adenine. It's one of the building blocks of DNA. So if anyone is using DNA on their job, in school, or as part of the chemical makeup of your body, you owe me money.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jun 2016 @ 5:33am

    "And earlier this year, HHS released guidance stating that with respect to genetic testing, patients have a right to access "not only the laboratory test reports but also the underlying information generated as part of the test," including "the full gene variant information generated by the test, as well as any other information in the designated record set concerning the test."

    All good but doesn't solve the problem that doctors frequently act as gatekeepers to tests and some doctors are still not happy to believe that DNA results can be helpful, instead choosing to patronize 'users' and refuse to recommend tests. While many specialized tests are still expensive for an individual, it is still the case that many are unable to get a doctor to authorize even if they want to spend their own money. As costs come down perhaps this situation can ease in the longer term but the guild mentality is still acting as a bar to increased testing in the short term.

    reply to this | link to this | view in chronology ]

    • identicon
      AJ, 13 Jun 2016 @ 5:55am

      Re:

      "All good but doesn't solve the problem that doctors frequently act as gatekeepers to tests and some doctors are still not happy to believe that DNA results can be helpful, instead choosing to patronize 'users' and refuse to recommend tests."

      "Citation Needed"

      Perhaps my families doctors are just paranoid or something, as it's all I can do to keep them from running every test in the book every time we have even a minor issue.

      "While many specialized tests are still expensive for an individual, it is still the case that many are unable to get a doctor to authorize even if they want to spend their own money."

      Again "Citation Needed"

      5 minute google search revealed multiple DTC (Direct To Consumer) genetic testing labs that quickly revealed paying out of pocket is a snap, and doesn't require a doctor to authorize. It is fairly new, so your results may not be as accurate as you would like, or be more accurately read by /or with a physician, but it is not required.

      reply to this | link to this | view in chronology ]

      • identicon
        I.T. Guy, 13 Jun 2016 @ 10:24am

        Re: Re:

        AJ appears to be a young fellow not having spent much time around older people.

        "quickly revealed paying out of pocket is a snap"
        Sure, AJ, if you have an extra 1595.00 laying around for a BRCA1/2. In addition to whatever you ALREADY pay for "health" insurance.

        "It is fairly new, so your results may not be as accurate as you would like" Ha ha ha yeah sure... I'll throw out 1500 for that. /s Oh and "Citation needed"

        ""While many specialized tests are still expensive for an individual"
        You said you spent 5 minutes searching google... you didnt see the hundreds of pages denouncing the costs of medical tests? Sure ya didnt.
        https://www.sciencebasedmedicine.org/32293/

        "doctors are still not happy to believe that DNA results can be helpful"
        Again... AJ... another 5 min Google search would have enlightened you as to the mixed opinions doctors have for DNA sequencing.
        -
        Shouldnt you be on Y00T00be harassing Truthers?

        reply to this | link to this | view in chronology ]

        • identicon
          AJ, 13 Jun 2016 @ 11:29am

          Re: Re: Re:

          "AJ appears to be a young fellow not having spent much time around older people."

          Stop assuming, it makes you look like an ass.

          "Sure, AJ, if you have an extra 1595.00 laying around for a BRCA1/2. In addition to whatever you ALREADY pay for "health" insurance."

          I had one procedure this year that cost me $3500 out of pocket, and I have good insurance. If a BRCA1/2 would have helped me to identify any predisposition early, perhaps I could have have utilized preventative medicine to prevent the need for that procedure. It would have been worth it.

          "
          "It is fairly new, so your results may not be as accurate as you would like" Ha ha ha yeah sure... I'll throw out 1500 for that. /s Oh and "Citation needed"

          http://www.cancer.gov/about-cancer/causes-prevention/genetics/genetic-testing-fact-sheet

          http: //www.cancer.gov/about-cancer/causes-prevention/genetics/genetic-testing-fact-sheet#q9

          https://ghr.nl m.nih.gov/primer/testing/directtoconsumer

          https://www.23andme.com/service/

          https://www.qiagen.com/us/s hop/sample-technologies/dna/dna-preparation/generead-dnaseq-gene-panels-v2?catno=NGHS-102X&cmpid =QFDKadwordsBRCAGA_SEM&kwid=brca1%20brca2%20breast%20cancer&gclid=CPGbu5bPpc0CFQgoaQodbmMMOA #orderinginformation

          You can spend as little as $200, and as much as $5,000 or more depending on what you want done.

          "Shouldnt you be on Y00T00be harassing Truthers?"

          Why? Your dumb ass remarks are quite a bit more fun to read.

          reply to this | link to this | view in chronology ]

          • identicon
            I.T. Guy, 13 Jun 2016 @ 11:46am

            Re: Re: Re: Re:

            Poor AJ.... Like I said in response to your questioning the cost of specialized tests and your asking for a citation of said costs... you have little experience in those matters and a second of searching would have revealed that. Troll harder kid. I suspect you DID see it but excluded your findings to make it look like it needed citation. It didn't.
            -
            "Sure, AJ, if you have an extra 1595.00 laying around for a BRCA1/2. In addition to whatever you ALREADY pay for "health" insurance."

            "I had one procedure this year that cost me $3500 out of pocket"
            Potato? WTF does that have anything to do with, and you MADE MY POINT thank you, that PPL already pay for insurance and may not have an extra 1500 disposable income laying around. Obviously you don't have the insurance you should. You may think it's good, but sounds like you need to reevaluate your plan.
            -
            Did you actually read the links you sent? You sent them in response to accuracy, or should have, but none of them even come close except:
            http://www.cancer.gov/about-cancer/causes-prevention/genetics/genetic-testing-fact-sheet#q11
            S o... "Citation STILL needed."
            -
            ""Shouldnt you be on Y00T00be harassing Truthers?""
            Even the Truthers get the best of ya huh wiLLie?

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 13 Jun 2016 @ 5:43pm

            Re: Re: Re: Re:

            "AJ appears to be a young fellow not having spent much time around older people."

            Stop assuming, it makes you look like an ass.
            I am just pointing out that the only person looking like an "ass" is thee. If you want to make a salient point, you need to be a lot more comprehensive. Otherwise, you end up looking as uninformed as the trolls who inhabit the various forests around techdirt.

            An observation was made, a comment was made as per the observation, your response has simply reinforced the observation and comment. If the observation is incorrect, you will need to provide significant clarification as to who and what you are and why you are taking the stand you are trying to portray?

            Arrogance can be attributed to anyone (including myself). In this you have just come across as uneducated and arrogant. You could consider being a little more civil and constructive by providing more content on which we can base your argument.

            Or you could be like some here, whose lack of rigour in defending their points of view is summed up by their common use of "Is that the truth" as the limit of their ability to discuss their point of view.

            At this point, I suppose, I will have lost you and so, in consideration of that point, I will finish here.

            reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    unpronkableypronkablepronkedpronk, 13 Jun 2016 @ 5:55am

    cuntholes

    fucking stupid fuckhole cunthole shithole cunts

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jun 2016 @ 6:07am

    Remember, if people can't copyright it people will have no reason to create or own DNA!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jun 2016 @ 6:28am

    Just because the courts are ruling against Myriad doesn't necessarily mean that they are going to give up those records to those patients they belong to. Companies like Myriad are well known for refusing to comply with court orders. After all, what are the courts going to do about it? Levy a punitive fine against the company? Revoke their patents?

    Only way I see the company complying is if the court appoints an administrator.

    reply to this | link to this | view in chronology ]

  • identicon
    all you dna are belong to ...., 13 Jun 2016 @ 7:11am

    @1 @6

    @1 hehe ya and i patented the begnnng of the universe so you all no matter what owe me know.....LOTS.....pay or we'll send hulk hogan to sue you.

    @6 my soluton is to hire a biker club to go into the board room with baseball bats....THAT WILL MAKE THINGS CHANGE

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jun 2016 @ 8:23am

    Without Copyright, no one would get born.

    reply to this | link to this | view in chronology ]

  • identicon
    Rigorous Ron, 13 Jun 2016 @ 9:52am

    "Instead, it is asserting its proprietorial right over DNA that comes from other people."

    Nope. It's asserting its right to the information it created by testing DNA that comes from other people. A judge will almost certainly state the same, and ask the ACLU attorneys, "So don't you think that Myriad has the right to CHARGE people for the results of the work it has done?" ACLU attorneys, "Er, uh, well this is America, so I guess so..." Judge: "So then it follows that Myriad owns that information. And if these people don't want to pay Myriad's price, aren't they free to pay someone else for the same service?"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jun 2016 @ 9:55am

      Re:

      crowd funded DCMA forms for genetic information...

      Sure they may own the results of the test but the DNA is MINE and I refuse to let them store it in their database as they are infringing on my copyright...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jun 2016 @ 10:48am

      Re:

      You cannot copyright facts, and therefore a persons DNA sequences cannot be copyrighted.

      reply to this | link to this | view in chronology ]

    • icon
      Oblate (profile), 13 Jun 2016 @ 11:42am

      Re:

      "So don't you think that Myriad has the right to CHARGE people for the results of the work it has done?"


      Surely Myriad charged the doctor/insurance company when this work was requested.

      IANAL but I don't think that charging twice for the same work is legal.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Jun 2016 @ 5:48pm

        Re: Re:

        IANAL but I don't think that charging twice for the same work is legal.
        Of course it is, that is the great financial foundation of the USA. "Don't let the suckers out of the door until we have drained them of all the currency we can" is the motto of your housing, copyright, medical, governmental, etc institutions.

        reply to this | link to this | view in chronology ]

  • icon
    profsteven (profile), 13 Jun 2016 @ 6:00pm

    Photography analogy?

    I'm not sure ACLU will prevail here. If a photographer takes a photo of me, I still own the rights to "me", but the photographer owns the rights to his photograph of me. I can ask for that photograph, and even the rights to that photograph, but the photographer isn't under any legal obligation to provide that (as far as I understand).

    How is that different to this case? MG made a "sample" (for lack of a better word) of a person's genetics, and they own the copyright to the database expression of that "sample". The person still owns their genetic information, but why does MG need to hand over the database, if that was not the contract at the time the sample was made. After all, the patient can go and get another sample that they do own the rights to any time.

    You may not be able to copyright facts, but you can certainly take a photograph which displays the "fact" of how I appeared at one particular moment in time, and own the copyright to that photograph.

    Am I missing something? Why does ACLU think they will win here?

    reply to this | link to this | view in chronology ]

    • icon
      klaus (profile), 13 Jun 2016 @ 11:29pm

      Re: Photography analogy?

      Your photograph analogy only works so far. Patients are guaranteed access to their health information -- including their genetic data -- under HIPAA.

      So in terms of your analogy, subjects are allowed under law to view a photograph of them. Copyright has nothing to do with this. Under European law, this would come under data protection, where people are guaranteed access to their own data.

      reply to this | link to this | view in chronology ]

      • icon
        profsteven (profile), 15 Jun 2016 @ 4:02pm

        Re: Re: Photography analogy?

        Thanks for that explanation klaus, I wasn't aware of the HIPAA guarantee (I'm an Aussie) and it sounds like a nice way out of the analogy.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2016 @ 7:29am

    You wouldn't steal your own DNA!

    reply to this | link to this | view in chronology ]

  • icon
    RRogers (profile), 14 Jun 2016 @ 3:50pm

    Myriad Genetics

    Glyn Moody did not contact Myriad for comment on this article. Unfortunately, most of what appears in this article is false and inaccurate. Myriad has a long track record of putting patients first. Learn more by viewing this video:

    Watch “Patient Privacy and Access to Test Results” by Myriad Genetics: https://vimeo.com/170663046

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous, 15 Jun 2016 @ 8:13am

      Re: Myriad Genetics

      Query whether R Rogers contacted Gwyn Moody for comment before accusing him of publishing an article in which "most of what appears is false and inaccurate." Interested readers might like to know precisely WHAT in the article is false, and what is inaccurate.

      reply to this | link to this | view in chronology ]

      • identicon
        Ron, 15 Jun 2016 @ 8:21am

        Re: Re: Myriad Genetics

        I have tried to reach Glyn Moody through voice mail, email, LinkedIn and Twitter. I have not received any response or willingness from Moody to talk. It is clearly a one-sided biased article and the author has demonstrated no interest in talking to Myriad or ensuring the accuracy of the article.

        reply to this | link to this | view in chronology ]

  • identicon
    Jeff, 16 Jun 2016 @ 7:09pm

    What am I missing

    The people who sent in their DNA want it back? Ummm, can't they just spit in a bottle, cut their hair,etc. it seems to me if they, of their own free will, paid Myriad to analyze their DNA and Myriad performed on that agreement isn't the relationship legally over?

    Whether Myriad can patent DNA is a separate issue that has been resolved against the company.

    Seems to me if Myriad discovers other variants, isn't that a product of their labor.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.