Early days, but still encouraging.

A Utah biotech outfit called Myriad Genetics has a test that can tell women if they carry mutations of two genes linked to a predisposition to breast and ovarian cancer. But if a woman wants that test, she can get it only from Myriad, at a cost of more than $3,000. No other company or lab is allowed to provide the test because Myriad holds patents on the very genes themselves, under an exclusive license from the University of Utah Research Foundation. Or it did until Monday.

In deciding a lawsuit led by the ACLU and the Public Patent Foundation at the Benjamin N. Cardozo School of Law in New York, U.S. District Court Judge Robert W. Sweet shot down seven of Myriad’s patents, ruling that as a product of nature, DNA could not be patented. And in concluding that the essence of DNA is not in the chemicals but in the information encoded therein, he rejected Myriad’s contention that DNA became patentable once it is isolated outside the body. As ACLU staff lawyer Chris Hansen said, “The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.”

For people who object to the commercialization of any private data, gene patents are the ultimate intrusion. Having an assortment of companies own the legal rights to 20 percent of your unique self, as they do now, just feels creepy and wrong. And it’s all the more stinging to know that in Canada, where Myriad’s patents are not recognized, women worried about a family history of cancer can have a lab do that test for under $1,000. “The idea that our ability to look at [genes], to analyze them, to utilize them would be constrained by the issue of a patent strikes many people viscerally,” said James Evans, chairman of a federal task force on the effect of gene patents on diagnostics and patient care. “Genes represent something we see as quite fundamental to who we are. … If this decision is upheld, it in the end is a win for patients and providers.”