We All Know (Own) Our ACGTs

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.


85 replies
  1. 1
    WereBear says:

    I would have said this is a “no-brainer” but this is the Roberts court.

    Just as a matter of law, how does discovering something lead to a patent? I could jump up and patent the genome for the domestic cat then, couldn’t I? As long as I was first in line.

  2. 2
    Higgs Boson's Mate says:

    This does appear to be huge. When I heard that patents were granted for parts of the naturally occurring human genome I wondered how long it would be before someone was granted a patent for oxygen.

  3. 3
    Fair Economist says:

    Way, way, way overdue, but I’m very glad. Plus Justice Thomas wrote the opinion so he may actually get cited now!

  4. 4
    Tom Levenson says:

    @Higgs Boson’s Mate: Roald Hoffman (Nobel laureate chemist) and Carl Djerassi (one of the inventors of the birth -control pill) wrote a play about the argument over priority in the discovery of oxygen, with the conceit that the Nobel Prize committee had decided to laud historical discoveries. Perhaps that uncertain claim to invention would have barred a patent for any claimant in that one. But your broader snark stands.

  5. 5
    Mnemosyne says:

    For people who somehow missed reading The Immortal Life of Henrietta Lacks when it first came out, the author addresses the controversy about patenting genes in the latter part of the book and points out that Lacks’s cells have been benefiting the world (and, not incidentally, drug companies) since her death, but her family hasn’t received a dime, and has even been told that their mother’s/grandmother’s/great-grandmother’s genes are under patent now, which for some of them carried a very creepy image of Lacks being held prisoner, Frankenstein-like, and forced to produce cells.

  6. 6
    White Trash Liberal says:

    I’m interested in what alterations to sequencing must occur in order to make a gene synthetic. What is the line where altering a thing in itself turns it into synthetic? That it is now no longer naturally occurring?

  7. 7
    WereBear says:

    @Mnemosyne: That’s a fantastic book.

    Once again, while Ms. Lack’s genes were rare, they were not created; only discovered. So it would be absurd to grant them a patent… perhaps it can be rectified now.

  8. 8
    elisabeth says:

    Twitter told me that the previous court ruling was a “LOLWUT” moment so apparently Thomas couldn’t really screw this up while writing the opinion.

  9. 9
    pete says:

    Murrow asked [Jonas] Salk, “Who owns the patent on this [polio] vaccine?” Salk magnanimously replied: “Well, the people, I would say. There is no patent. Could you patent the sun?”

  10. 10
    piratedan says:

    well this should prevent Monsanto from patenting the human genome itself and having them bill us for the use of our own bodies…..

  11. 11
    TriassicSands says:

    The best news out of the Supreme Court in ages.

    And unanimous. Maybe the wingers on the court didn’t realize how much corporations stood to profit from patenting the genes of everything.

  12. 12
    Higgs Boson's Mate says:


    I’d bet a case of ale that they looked into it.

  13. 13
    GxB says:

    Alright, since I’m quick to give the SC crap for all the boneheaded stuff it pulls, I will for once clap politely and without any sarcasm for this ruling. This while a sudden rush of money men scream out in agony as all those dreams of obscene profits vaporize – but don’t think for a second they’ll give up that easy. Just like you never get between a mamma grizzly and her young, you never get in between the Gordon Gekkos of the world and that sweet lucre.

    But for now, bravo SC – you got scientists back to doing the right things for moreso the right reasons.

  14. 14
    maurinsky says:

    June 13, 2013 – the day I agreed with Clarence Thomas on something. Marking it down.

  15. 15
    Anon says:

    Shockingly, MYGN is up 8% today.

  16. 16
    piratedan says:

    @Higgs Boson’s Mate: not taking it, I suspect that you have pricey taste in ale :-)

  17. 17
    Tone in DC says:


    Good one. Sad thing is, given what I’ve read about that company, I’m pretty sure they’d at least try it.

  18. 18
    ericblair says:

    This is great news. I don’t know how many people outside technical fields know what a creeping disaster modern patent practice is. It’s gone full circle from protecting the little guy from BigCorp stealing his idea, to making sure that any guy with any idea gets sued to death.

  19. 19
    MeDrewNotYou says:

    I’ve seen a frequent commenter here (Davis X Machina, maybe?) use a great line (that I will now butcher) that perfectly applies to our Ferengi mindset.

    It goes something like this:

    Everything that is can be bought and sold.
    Everything that can be bought and sold must be bought and sold.

    The culture that promotes the commodification of everything really bugs me. Capitalism has enough problems as it is; adding ‘owning pieces of humans’ back to it seems like an awful idea, moral implications aside.

  20. 20
    Yatsuno says:

    @TriassicSands: Why did Uncle Thomas want to make the jerb creators cry?

    Only thing I can think of is that it involved a university, Stanford IIRC. And Uncle Thomas just lurves to stick it to those pointy-haired elites.

  21. 21
    MeDrewNotYou says:

    Right after I posted, I found the exact quote Davis uses. It really is brilliant.

    Anything that is, can be bought and sold.
    Anything that cannot be bought or sold, is not.
    Anything that can be bought and sold, must be bought and sold.

    The Ferengi sucked, but at least they rented out their holosuites. You think the Koch brothers are going to let you hang out on their yachts?

  22. 22
    Cassidy says:

    Wait? I haven’t been keeping up with this topic. These assholes patented genes that are related to disease and then people could only get testd for those genes if they went through this company’s specific, price inflated test to find it?

    These motherfuckers need to be choked out with a fucking strap-on. repeatedly.

  23. 23
    Chyron HR says:

    Come on, the right wing of the Supreme Court isn’t just beholden to big business. They also lurve the Bahbul, and would baby Jesus really support this godless DNA science stuff?

  24. 24
    pseudonymous in nc says:

    Scalia’s note at the end of the opinion is quite remarkable. It’s basically “fucked if I know anything about what this DNA stuff actually does, but I agree with what they all said about the law.”

  25. 25
    scav says:

    @Cassidy: I believe that is a patented procedure. Please contact the requite licensing and billing board. Franchise opportunities do exist.

  26. 26
    Emma says:

    @pseudonymous in nc: I know. I actually burst out laughing, both because it was so unusual for him to actually own up to not knowing something and because he way he works it out in his own mind reminds me of myself when I think about cosmology or nuclear physics.

  27. 27
    MeDrewNotYou says:

    @Chyron HR: It depends. How many pieces of silver are we talking?

  28. 28
    Higgs Boson's Mate says:


    It is my understanding that there are firms that make a practice of buying up every patent they can and then looking for opportunities to sue for infringement. On a personal note, I worked for a company that held some long standing technology patents. They applied very narrowly to innovations in digital information recording and storage. Our facility had been on the same several acres in a Los Angeles suburb since before WWII. We were bought up by a then very large, very wealthy company which proceeded to take the patents, sell off the land and put a few hundred people out of work.

  29. 29
    Linda Featheringill says:

    You can’t patent human genes, or you can’t patent genes period?

    What about plants? Strains that have existed for centuries but Monsanto and Co. want to hold patents on them now?

  30. 30
    Redshirt says:

    @ericblair: I’ve worked a few startups who relied on an aggressive patent program – legitimately. It was new tech. In one case, a large multinational was clearly violating our patents (lots of folks were), but when we approached them, legally, they in turn sued us. The negotiations led to the multinational buying the startup, or more specifically, the patents.

    I was not involved in the legal matters, but from what I gathered, we would have been spent into bankruptcy trying to fight them, so we just sold.

  31. 31
    Brother Machine Gun of Desirable Mindfulness (fka AWS) says:

    @Linda Featheringill: The court ruled on a seed patent case a few weeks ago. Basically, Monsanto won. ETA: That was a case of specific, disease-resistant seeds, not strains that have existed for centuries.


    These motherfuckers need to be choked out with a fucking strap-on. repeatedly.

    You assume they wouldn’t enjoy that.

  32. 32
    Higgs Boson's Mate says:


    So you worked your ass off, probably for less than the work was worth, in return for a bundle of stock options that never materialized. Been there, done that.

  33. 33
    Mary G says:

    Well, it’s nice to know they have some limits. Good for them. Agree with everyone who says the “Immortal Life of Henrietta Lacks” is a fantastic book.

  34. 34
    Linnaeus says:

    @Linda Featheringill:

    I haven’t read the full opinion, but I would think that this would apply to nonhuman organisms as well. Their DNA is, obviously, just as much a “product of nature” as human DNA.

  35. 35
    Shakezula says:

    Sometimes, at the end of the day, the ruling is based on a gut reaction to something icky and you can predict the ruling because the issue is just universally icky. After that, it is all over but finding the words to pretend that the ruling amounts to more than “Eww, gross!” This is one of those rulings. I’m not complaining at all, but it interesting to see one of these.

    P.S. Bravo on the post title.

  36. 36
    Linnaeus says:

    I know a historian who assisted in writing a brief for this case, and he gave a really good talk on the background of all this. It’s a rather tangled skein.

  37. 37
    Tom Levenson says:

    @Linnaeus: Link to the talk?

  38. 38
    MikeJ says:

    For people imnteresyted in payment trolls, This American Life had two good shows on the subject.

  39. 39
    Redshirt says:

    @Higgs Boson’s Mate: Actually, in that case, I made out great. In two other cases, bumpkis. The tech IS world changing.

    Did you ever see the Simpsons episode where Bart gets an online comic published, and is paid in stock options? Which were printed on rolls of toilet paper? Yeah, like that.

  40. 40
    Epicurus says:

    Thanks for a great post, but especially for the stunning painting. Two beautiful women (sadly, long dead) but preserved forever by a talented artist. You have truly outdone yourself this time, and I can only hope you will continue your great work.

  41. 41
    raven says:

    @Epicurus: Nice dog too.

  42. 42
    Linnaeus says:

    @Tom Levenson:

    Here’s the talk he (the historian Myles Jackson) gave at another venue. I should modify my prior comment: his talk wasn’t about this case (though he did help out with the Supreme Court brief on it), but of another gene patenting case. Still, it gives you some insight into how this all got started. Apologies for the error.

    Also, here’s Jackson’s HuffPo piece about gene patents.

  43. 43
    khead says:


    Close. The USSC tossed the gene patent but Myriad’s assay patents are ok. So, you are still probably going to want to choke them.

  44. 44
    pokeyblow says:

    @Linda Featheringill: Good question.

    Apart from sentimentality, is there any specific reason to treat “human” genes differently than “life” genes?

  45. 45
    Linnaeus says:


    Yeah; you can’t patent the gene, but you can patent a particular process you’ve created involving that gene.

  46. 46
    Bubblegum Tate says:

    @pseudonymous in nc:

    Or, as Gawker puts it, Antonin Scalia does not believe in molecular biology.

    What a fucking joke that sack of shit is.

  47. 47
    Forum Transmitted Disease says:

    Scalia’s note at the end of the opinion is quite remarkable. It’s basically “fucked if I know anything about what this DNA stuff actually does, but I agree with what they all said about the law.”

    @pseudonymous in nc: Very unhappy with this. Scalia is a vile creature, but one of the things that any human being can do that will instantly earn my respect is being willing to admit that you don’t know something, as so few people are willing to do so nowadays.

    He just did that. So I gotta give a man who I consider to be a blight on the human race and the nation of America some respect. Gah.

  48. 48
    scav says:

    @Forum Transmitted Disease: You could also view it as a statement of a man unwilling and unable to accept the views of experts other than himself and his beliefs. “Some say” genes are structured so but dissent in Scotus records exist. Take that scientific over-edumacated elite! He doesn’t beeeeee-leeaaaavvee.

  49. 49
    eric says:

    This is a major blow to the holder of the patent for stupid, cause the GOP has been willfully infringing more and more with each passing year.

  50. 50
    Cathy W says:

    @khead: But at least now someone else is free to develop another assay.

  51. 51
    Higgs Boson's Mate says:


    The tech IS world changing.

    I’d get a great deal of satisfaction just knowing that.

    Throughout my experiences with startups I always figured that the stock options were like betting 00 in roulette. I was in my forties so I was definitely The Old Guy. I was able to mentor some wonderful people and have way more fun than a middle aged person should.

  52. 52
    Higgs Boson's Mate says:

    Moderation? Wha’d I do wrong?

  53. 53
    Cathy W says:

    My dream scenario, in a court case challenging a gene patent, was to find a man named Arthur who a) was older than the patent, and b) carried the gene in question, so that he could come into court and introduce himself as Prior Art. But that’s me….

  54. 54
    bluefoot says:

    @Linda Featheringill: I haven’t yet read the decision (and I’m sure patent attys will be parsing it for months or years to come), but I would expect that this applies to all genes.

    Patenting strains is different, though. If Monsanto or whoever created a new strain they would be able to patent it, but not if it already occurs in nature.

    I would expect too that method of use for a gene not in its native organism would also still be patentable. To use an old example, for instance putting the human insulin gene into bacteria to produce human insulin in large quantities.

    I would also expect that one could still patent a specific diagnostic test based on a genetic sequence, because you’re patenting the test, not the gene or its use. I wonder if this will drive some things out of the patent space and into “trade secrets”. I have mixed feelings about that, because at least with patents, the information is public. Trade secrets are exactly that, secret.

  55. 55
    Higgs Boson's Mate says:

    @Cathy W:


  56. 56
    burnspbesq says:


    The USSC tossed the gene patent but Myriad’s assay patents are ok.

    And they seem to have gotten it right on both issues (note: not claiming any special expertise in IP law, but you can’t do what I do without having a basic understanding of IP law).

  57. 57

    On the topic of genes, so when will we get GMO humans? and will they be like Khan?

    ETA: In case anyone is interested, you can find my review of the new Star Trek movie here

  58. 58

    @Higgs Boson’s Mate: Did you hide Tunch’s tuna?

  59. 59
    burnspbesq says:

    @Bubblegum Tate:

    Or, as Gawker puts it, Antonin Scalia does not believe in molecular biology.

    That description of Scalia’s concurring opinion is absolute intellectually dishonest bullshit. Why am I completely unsurprised that you fell for it, hook, line, and sinker?

  60. 60
    burnspbesq says:

    @Forum Transmitted Disease:

    So I gotta give a man who I consider to be a blight on the human race and the nation of America some respect. Gah.

    Scalia’s had a good month, but the month is far from over. We’re still waiting for decisions in the DoMA and Voting Rights Act cases. There’s plenty of time for him to revert to mean (in both senses of the word).

  61. 61
    Higgs Boson's Mate says:

    @schrodinger’s cat:

    LOL. No way. In many instances I prefer the antics of animals to those of people.

  62. 62
    scav says:

    I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.

    It all depends on the finer legal meanings of belief. We are unworthy of appreciating them. He doesn’t know what he believes on this and is scrupulous upon inserting similar disclaimers into all decisions where he is not in complete mastery of all engineering, molecular, biological, ethical . . . details and is utterly convinced of what he believes.

  63. 63
    Chet says:

    you can’t patent genes.

    Well, you can patent genes that you invent, or naturally-occuring genes (like Cry2Ab) that you substantially re-engineer as part of cloning it into another organism. Like the 9-0 decision, I just don’t see how there could have been much legal dispute about the notion that you can patent something taken directly from nature just because it takes a little work to isolate it. It’s like saying you can patent the miniature pirate bug just because you have to use a magnifying glass to see it.

  64. 64
    Joel says:

    Just in time for the Mary Claire King movie.

    Myriad can DIAF.

  65. 65
    NeenerNeener says:

    I wonder what this does to the plot for season 2 of Orphan Black.

  66. 66
    Chet says:

    @Linda Featheringill: You can’t patent a gene where all you’ve done is isolate it from an organism. But you can patent a gene that you create de novo, or you can patent a gene that you discovered, and then re-engineered towards some purpose. There’s a bunch of patents on re-engineered Taq polymerase III in regards to its utility as the key enzyme in PCR, all modifications of “wild-type” Thermicus aquaticus polymerase III, which you would not be able to patent.

  67. 67
    Bubblegum Tate says:


    Settle down there, sparky. Scalia’s the one who said, “I am unable to affirm those details [i.e. the basics of how genes work] on my own knowledge or even my own belief.” The emphasis is mine. The statement is all his. Don’t like it? Take it up with him.

  68. 68
    TooManyJens says:

    @Bubblegum Tate: Far be it from me to defend Scalia, but to me it read more like, “I don’t understand this stuff, so I can’t make an affirmative statement that I agree with it.”

  69. 69
    Jebediah says:


    It’s like saying you can patent the miniature pirate bug just because you have to use a magnifying glass to see it.

    In that case, I am going to patent my ju

  70. 70
    Bubblegum Tate says:


    I would agree if he hadn’t put that bit about belief at the end there. But he did. As though whether or not he “believes” genetics has any bearing on its veracity.

  71. 71
    scav says:

    @TooManyJens: Is this seriously the first time he’s not been in complete mastery of all details about the underlying science of a case since 1986? Or is this small-print boilerplate he attaches to all decisions?

    Why do this now.

    How does he or his objectives benefit by doing this.

  72. 72
    Xenos says:

    @Forum Transmitted Disease:

    but one of the things that any human being can do that will instantly earn my respect is being willing to admit that you don’t know something, as so few people are willing to do so nowadays.

    If only there were a transcript and files of exhibits explaining all this stuff, should an intellectually curious justice want to look at actual scientific findings, like they mattered or something.

  73. 73
    pseudonymous in nc says:


    Is this seriously the first time he’s not been in complete mastery of all details about the underlying science of a case since 1986?

    He’s apparently able to read the minds of long-dead people, which is quite a thing.

    I’d like to admire it as a moment of honesty, but it also feels like the judicial version of when wingnut candidates are asked “how old is the earth?” and say “well, I wasn’t around at the beginning, and neither were you.” It’s an assertion of tribal membership.

  74. 74
    liberal says:


    Just as a matter of law, how does discovering something lead to a patent?

    Great question.

    My impression based on IIRC Daniel Kelves [???] writing is that to use genes you use cDNA, and cDNA itself is not a product of nature. (Again, IIRC; don’t have time to verify, and not an expert on genetics.)

    Which to me is BS: it’s a matter of taking a product of nature, applying a known transformation to it, and claiming the result is patentable. The fact that this crap has stood until now is pretty embarassing for the legal profession, IMHO.

  75. 75
    Francis says:

    Scalia’s an asshole because he never (and I mean NEVER) should be deciding cases based on his own knowledge and beliefs, and yet he does so anyway. Look up Radley Balko’s frequent references to Scalia’s discussion about “new professionalism” among cops. The fact that he calls out in his concurrence what he should be doing anyway — relying on the record alone — is what makes him an asshole. It shouldn’t be worth a separate concurrence to tell the world you’re doing your damn job.

  76. 76
    Villago Delenda Est says:

    @Higgs Boson’s Mate:

    Our facility had been on the same several acres in a Los Angeles suburb since before WWII. We were bought up by a then very large, very wealthy company which proceeded to take the patents, sell off the land and put a few hundred people out of work.

    I’m sure Mitt Rmoney approves, and just wished he had been in on it.

  77. 77
    Anonymous37 says:

    I can see why your genes shouldn’t be patentable. But did the Supreme Court really rule that my genes can’t be patented? That’s a load of crap: my genes are f***ing awesome. I mean, just look at me.


  78. 78
    Calouste says:

    @Cathy W:

    You could go one better and try to find a monk named Arthur who you can then introduce as Prior Art.

  79. 79
    khead says:


    Agree they got it right. Probably should have added that earlier. I examine analytical devices and methods – some of the methods touch on the type of assay(s) the USSC said were ok.

  80. 80
    PopeRatzo says:

    My problem with this decision is that it does not go far enough. In fact, it tacitly supports the notion of patenting new genes, which will inevitably lead to more proprietary organisms and control over agriculture and food supply.

    Better would have been a blanket denial of patenting any genetic code. Period. This just opens the door to the real holy grail of corporatism: people paying license fees for their food and the complete destruction of small, independent farms.

  81. 81
    Redshirt says:

    @PopeRatzo: I agree with your gist, but not your conclusion. There’s a lot of effort to create new genetic material, and this work is no different than new chemicals, or new tech, or new anything really. Why shouldn’t I get to patent a microbe that I developed over the years and does not exist in nature? For instance, taking your standard E.Coli bacteria and modifying it such that it produces ethanol. That’s a legit invention and should be controlled by the inventor.

  82. 82
    burnspbesq says:


    Better would have been a blanket denial of patenting any genetic code.

    If you want that, take it up with Congress. Were you asleep when they talked about the “case or controversy” requirement in Article III in your civics class?

  83. 83
    Maude says:

    That book was the first thing I thought of when I heard about the decision. I read it when it first came out.

  84. 84
    Enzymer says:

    Good news indeed. Among others for the biotech industry. This should really bring a breathe of fresh air and some financing into a lot of biomedical diagnostic type work. The Myriad patent & similar patents have stifled R&D in many areas.
    For Ag, this will also be liberating. Monsanto has had an IP practice of sequencing everything under the sun and then filing blanket patent applications on every gene they see. My company (not Monsanto) has long believed that Myriad-style gene patents cannot be valid. To hold otherwise leads to all kinds of legal insanity.
    So Hurray. this is good for patients, consumers & companies that want to innovate.

  85. 85
    DavidTC says:

    These types of genetic patents were complete nonsense anyway. The other types of genetic patents are more debatable. Here are the three types of patents on genes:

    1) Actually creating a new gene sequence. No one has actually ever done this, or at least created one that _did_ something. This probably is reasonably patentable. (Although it would be nice if, when we ever start doing this to humans, we make sure that altered humans are able to reproduce regardless of whether the gene sequence is still patented. But that’s _far_ future.)

    2) Taking a gene sequence from one thing and putting it another. This is how Monasto works…they found a gene sequence in something that was immune to Roundup, and inserted it in corn and other things.

    The idea that this should be patentable is…debatable. In one sense that’s sorta how patents work in general, because almost no one ever invents a _new_ device, they just put old ones together differently. OTOH, the patenters aren’t _actually_ putting the stuff together…it’s like if there were a bunch of naturally-occurring computers, and they ran around copying programs from one computer to another. Whether that’s ‘inventing’ or ‘discovery and using’ is debatable.

    I’m in favor of not patenting that because 90% of it is complete bullshit anyway, a clever way to produce even more crap for eating.

    3) And then there’s this bullshit, where you find a naturally occurring gene sequence and patent what it is doing, in the place it is doing it. Or, rather, you learn what it’s doing, and patent the idea of testing for it.

    This is complete nonsense. That is not ‘invention’, it’s barely even ‘discovery’. It’s fricking statistical _observation_ to decipher what genes do what.

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