About 40% of the human genome has apparently been covered under one patent or another and the matter of whether that’s something that should be permitted has now come before the Supreme Court, according to this story. Those holding the current patents, of course, say yes and suggest that if it’s not allowed, scientific endeavor and research in these fields will suffer. Those pressing the lawsuit say no, and for much the same reasons:
The U.S. Patent and Trademark Office has granted patents on at least 4,000 human genes to companies, universities and others that have discovered and decoded them. Patents now cover some 40 percent of the human genome, according to a scientific study led by Christopher Mason of Weill Cornell Medical College. But if foes of gene patents have their way, that percentage could be rolled back to zero.
On Monday, the U.S. Supreme Court will hear oral arguments in a case that calls into question whether human DNA can be claimed as intellectual property, and remain off limits to everyone without the permission of the patent holder.
I’m especially interested in this passage:
The legal issues center on whether the genes that Myriad patented, called BRCA1 and BRCA2, are natural phenomena. The ACLU says human DNA is a product of nature, and as such not patentable under the Patent Act. Myriad argues that its patents are for genes that have been "isolated," which makes them products of human ingenuity and, therefore, patentable.
Now, forgive me if it seems simplistic, but to suggest that someone could take my genetic code and patent a component of that code for their use and profit, justifying it by saying it’s okay because they “isolated” it, is relying on the same mechanism as one who would suggest that they can patent an apple because they picked it off a tree. This is completely different if what they’re doing is patenting some process they developed to identify a corruption in a given gene, or a method of transplanting that gene into another’s code. But if they simply identified the gene in question, and they neither created it nor developed some process that works either with or on it, then they’ve identified a natural phenomenon. I do not believe they should be permitted to use the force of law to keep anyone else from discovering the same natural phenomenon. They certainly should not be able to force someone to pay them money to observe that phenomenon.
The Court heard the oral arguments today and will likely rule in a few months.