Carl Kanowsky, Esq.
Angelina Jolie’s boobs. Got your attention, right? That is what that pair has been doing (quite effectively, I might add) since the movie “Hackers” in 1995.
They’ve been in the news, but for a different reason than their prior allure. As probably 95 percent of the world population knows, she’s had them removed for health reasons.
Some time ago, the U.S. Supreme Court spoke out about them (indirectly).
Jolie disclosed in the New York Times in May that she had some tests done to determine her susceptibility to different forms of cancer, including breast and ovarian. She explained what the tests found: “I carry a faulty gene, BRCA1, which sharply increases my risk of developing breast cancer and ovarian cancer.” She was told she had an 87-percent chance of getting breast cancer and a 50-percent chance of ovarian cancer.
As a result of the tests, she had major surgery in two stages. First, “where the breast tissue is removed and temporary fillers are put in place. … Nine weeks later, the final surgery is completed with the reconstruction of the breasts with an implant.” This description comes straight from her op-ed piece in the Times.
Many people consider this a radical step by Jolie. Regardless of how you feel about her decision, she was able to make an informed decision because she has enough money to get the tests. The tests – which run about $3,000, from estimates I’ve seen – simply are not available to most women because of the cost. The cost is high because only one company offers it.
Why does only one company offer it? Because it has a patent that it says prevents other companies from copying what it has created.
Well, not everyone agreed with this concept. So lawsuits were filed and things finally wound up before the Supremes.
In Association For Molecular Pathology et al. v. Myriad Genetics, the court agreed that Myriad had “discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. Myriad obtained a number of patents based upon its discovery.”
Myriad had developed tests to isolate a woman’s DNA relative to BRCA1 and BRCA 2. Myriad could then study this DNA and see if the patient had certain mutations that made her a candidate at higher risk of contracting breast or ovarian cancer.
The question before the court was whether Myriad’s ability to isolate this naturally occurring DNA, in and of itself, was a legitimate basis for a patent.
Justice Clarence Thomas highlighted that some things are not patentable simply because you spent a lot of money discovering them. “We have long held that … laws of nature, natural phenomena, and abstract ideas are not patentable.”
The purpose of patents is to promote creations, not to stifle competition. As Thomas said, “(P)atent protection strikes a delicate balance between creating ‘incentives that lead to creation, invention, and discovery’ and imped(ing) the flow of information that might permit, indeed spur, invention.”
This distinction formed the crux of the decision. The court ruled that Myriad had found something important but had not created anything. Therefore, its patents based on detecting the presence of BRCA 1 and 2 were improperly issued. That means other laboratories and diagnostic companies can offer the same tests without paying a royalty to Myriad or seeking Myriad’s permission.
Hopefully, the result of the court’s decision is that you will not have to be a mega-movie star to get these tests in the future. While Angelina’s former boobs were spectacular, even ones that are simply beautiful can also now be protected.
Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.
Breasts and the Law | Commentary by Carl Kanowsky Esq.
