This is more a “hey, look at this” post than any considered analysis, but the Supremes just handed down what will probably be the biggest non-politics-centered decision of this or many sessions: you can’t patent genes.
Interestingly, this result was apparently not even close as a matter of law, as the decision, written by Clarence Thomas, was unanimous:
“A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” he said. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes.”
The case concerned Myriad Genetics which holds (held!) the patents on the BRCA 1 and 2 genes hat — as the Angelina Jolie story recently made famous — are in some variant (mutant) forms highly correlated with very nasty strains of breast and ovarian cancer. The life and death stakes involved in access to the genetic diagnostics that could run $3,000 per test that Myriad controlled through its patents certainly frame this case — but the implications of this ruling are, simply, huge, as much biotech investment has chased sequences in a strategy that bears some resemblance to classic patent trolling.
The ruling did preserve what seems to me to be the original intent of patent law (see Lewis Hyde’s excellent Common as Air for an account of the origins of intellectual property ideas in the thinking of the American founding fathers). You can still patent modifications and applications of technology to the raw material of nature that a mere sequence represents.
I really am just digesting this. I’ve talked to people over the years who have been mournfully horrified by the constraints on research and the discovery of real public goods imposed by a too permissive patent regime — Jim Watson told me the same story that he’s repeated in public many times of being asked by Leo Szilard if he and Crick thought about patenting the double helix. When Watson replied that he didn’t think it was (or should be) patentable, Szilard then said (Watson recalls) that maybe he could copyright it. Watson and Crick’s incredulity at thought was typical for the time, but we’ve drifted far, far away from that now…and it’s good to see the pendulum swinging back.
But as I say, first, fast reactions here. This is a decisions that’s going to ring out for a while, and it will be fascinating to see what comes.
Image: John Everett Millais, Twins, 1876.