Narratives of Gene Patenting

Abstract

The debate over gene patenting in the United States has been ongoing for nearly three decades. It reached a peak in June 2013, with the Supreme Court's decision in Assn. for Molecular Pathology v. Myriad Genetics. The Myriad case was remarkable for many reasons, not least because it fostered the engagement of hundreds of scientists, physicians, patients, lawyers, activists and policy makers, each of whom expressed a view regarding the case and gene patenting, more generally. From this multitude of voices emerged six distinct narrative types that recounted the "facts" in the case. I have termed these the Science, Innovator, Administrative, Access, Dystopian and Congestion narratives. In this article, I trace the origins of each of the narrative types in Myriad from press accounts, published literature and the record in the case, including nearly one hundred separate amicus briefs filed at all stages of the litigation. I then assess how each narrative type influenced and became incorporated into the resulting judicial decisions. There is a strong correlation between the narrative types employed by a speaker and the normative case outcome desired by that speaker. This correlation occurs not only when the narrators are litigants or amici curiae, but also judges. This finding suggests that the judges issuing decisions in the case calibrated the narratives or "facts" expressed in their opinions to align best with the doctrinal outcomes that they desired.

The six narrative types that emerged in Myriad also constitute at least a partial taxonomy of narrative types within the broader realm of disputes involving new technology, scientific discovery and innovation. Thus, whether a dispute involves gene patenting, genetically modified organisms, nanotechnology or self-driving vehicles, it is likely that some or all of the narrative types in the Myriad case will make an appearance. However, the same narrative types in different technological settings do not always appear to support the same doctrinal outcomes. Thus, narrative type cannot be said to be determinative of case outcome without additional context provided by the narrator’s perspective, audience and worldview.

Keywords: patent, gene, myriad, genetic, genome, narrative