NY Times, others: Federal court throws out gene patent
Wednesday, March 31st, 2010Nobody likes a good gene patent story like the New York Times, which published three stories in the two days following a recent federal court ruling.
The news: A federal district court threw out seven patents related to the breast cancer genes BRCA1 and BRCA2. The suit had been filed by the American Civil Liberties Union, individual patients, medical organizations, and others.
The issue, debated for years, is whether patenting genes and thereby protecting profits will spur the biotech industry to more quickly develop diagnostic tests and treatments. The industry says yes. The plaintiffs say no. They argue that patents stifle innovation and make it difficult for researchers to build off of others’ discoveries. The disagreement couldn’t be clearer.
The legal case turns on whether the gene a biotech company patents is something found in nature, or something that’s been subtly altered by the company.
In its first story, on March 29th, veterans John Schwartz and Andrew Pollack report that the judge ruled that the genes in question were found in nature, and that the argument that they were slightly different was a “lawyer’s trick.” That’s a nice quote from the opinion; the phrase “lawyer’s trick” neatly encapsulates the judge’s view. Some sources quoted in the story said this could be disastrous for the biotech industry, because it would eliminate the financial incentive to work on a gene. Others said the loss of patent protection would open up and speed research. I’m not sure how I would have done the story differently, but it left me unsatisfied: I want to know whether the decision will hamper research or accelerate it. And the story didn’t tell me that.
Pollack did come back the next day with a follow-up story in the business section about “taking stock” after the decision. Because it was a business story, Pollack noted that biotech stocks fell on the decision, and he interviewed business people. This had the effect of making this story far less balanced than the Schwartz-Pollack story the previous day, which tried to balance competing views. The business people think the decision is a disaster. The follow-up story strongly reinforced that point of view, even if Pollack did end it with a quote from an academic who challenged that view.
The lesson here is that just because it’s a business story, that doesn’t mean the reporting should be limited to interviews with business people. The plaintiffs should have been represented here, too. That’s good journalistic practice, and it’s good for the readers. The business people who read the Times business section know what business people think. They need to know what outsiders think.
Hold this up next to the About New York column by the populist writer Jim Dwyer in the Times the same day. He interviewed the plaintiffs and their supporters. That led to an equally unbalanced story in the other direction. And Dwyer wasn’t shy about establishing the stakes: “This is a war over human nature,” he writes. That’s a nice rhetorical flourish, but it’s silly and should have been struck out by his editor. This is not a war over human nature. It’s an argument about research and how researchers should be compensated for the risks they take. And it turns on a technical question about alterations in isolated genes, not on whether “the traits we inherit from our parents…could become a company’s intellectual property,” as Dwyer puts it. I like the passion, but it’s out of order in this case.
Others:
Robert Langreth at The Science Business, a Forbes blog, isn’t shy about where he stands. The headline reads: Finally, Common Sense Prevails On Gene Patents. A decidedly anti-business position at a business magazine.
A brief AP story on the Bloomberg BusinessWeek website concerns itself exclusively with the fall in the stock of Myriad Genetics, the company that owns the patents in question. The AP–at least in this excerpt–doesn’t hint that the decision has any other importance whatever. It’s another example, like Pollack’s business story, of writing a story that is way off balance because it doesn’t include information from anyone other than business people. The excuse that this is a business story is no excuse.
A news story at Nature online quotes the geneticist Mary Claire-King of the University of Washington, who says the ruling would be good for breast and ovarian cancer patients and their families. First mention I’ve seen of that; others would have done well to include that perspective.
But Nature isn’t telling all here. Some readers might remember that Claire-King narrowly lost the race with Myriad Genetics to isolate the gene, and that’s why Myriad was able to claim the patent. Had she won that race, things might have been different.
- Paul Raeburn