Gene Patents Finally Make It to the Supreme Court

Bioethics   |   Rebecca Taylor   |   Dec 6, 2012   |   11:53AM   |   Washington, DC

So the long and twisted court battle over the patenting of genes is finally going to the Supreme Court. The American Civil Liberties Union (ACLU) has rightly sued Myriad Genetics and the US Patent Office over the granting of patents on naturally occurring human genes.

About one fourth of our genes are patented which means that the patent holders control everything associated with that gene including research, testing and treatment. I have written many times that this state of affairs is ludicrous because patents cannot be issued for products of nature. If our DNA is not a product of nature then I don’t know what is.

The original decision on this case was right. The initial ruling was that DNA isolated from its natural environment cannot be patented. Judge Sweet wrote:

DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality as it exists in the body nor the information it encodes.

Of course Myriad appealed and the appellate court came back with a ridiculous ruling that DNA isolated from the body was fundamentally different than it was inside the body so it qualified as an invention.

The case then went to the Supreme Court, without hearing arguments, who kicked it back down for reconsideration. The lower court again, out of its mind, found that isolated DNA from the human body was a patentable invention.

Now the highest court in the land has finally agreed to hear arguments over what I believe is the systematic claim of ownership of the human body.

As someone who has isolated more DNA from people than you can imagine, I have a suggestion for the ACLU lawyers. Myriad, a company that tests women for variations in the “breast cancer genes” BRCA I and II, is claiming that isolated DNA is so fundamentally different that it is in the body that it is something they can own. If I were a lawyer for the ACLU, I would ask Myriad whose name goes on the tube of isolated DNA. Guaranteed the patient’s name is on the tube. In fact, a good lab will have two patient identifiers on every tube, the patient’s name and a number assigned to their sample.



If isolated DNA is fundamentally different from it is in the body that it becomes a patentable invention, then why would Myraid bother to identify the sample at all? Why not just put “Myriad” on every tube and call it good?

I am positive Myriad does not do that because the isolated DNA in every tube tells us something about the patient it came from. DNA can only tell us something about the patient if it is NOT so different than it was in the body. Isolated DNA is still a sequence of nucleotides produced by a person and so it is their DNA, not Myriad’s. So it is the patient’s name, or some other way to identify them, that goes on the tube.

Common sense seems to be at a premium these days. Let us pray that the Supreme Court has some when deciding on this case.