The US Supreme Court ruled today that human genes cannot be patented. Here is the link to the New York Times article. The specific case regards Myriad Genetics, which held a patent that controlled the rights to all tests for the BRCA1 and BRCA2 genes implicated in breast cancer. The patent essentially blocked most research on the BRCA genes. The immediate effect will be that genetic testing will become cheaper and more widespread. People will argue that not allowing genes to be patented will discourage further innovation. I doubt it. Most discoveries, like genes, come from basic federally funded research. Any company can now develop a test for any newly discovered gene. Patent law has been broken for decades and this is just one small step to correcting it.
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Scientific Clearing House 
YAY.
One interesting thing is how they circumvented (in the original cases) the business that you can’t patent a product of nature. Apparently the process of “using” genetic information involves cDNA, which (I’m no expert on this stuff) doesn’t occur in nature. So they can patent that.
Which IMHO is completely idiotic. You take a product of nature and transform it by a process that is completely known to everyone, and now you can essentially patent the natural product itself.
It’s like saying “you can’t patent details of a land mass, but you can patent a map of the land mass, since maps don’t occur in nature.”
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I don’t really understand why you can patent cDNA either although I suppose you could argue that DNA with intronic sequence removed never appears in nature. Still any high school student these days can buy a kit to make cDNA from mRNA.
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Ultimately, aren’t genes just software? If software can be patented, why can’t genes be patented?
(Yes, I know, the patentability of software is questionable… but software keeps on getting patented nevertheless…)
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Aside from the fact that I don’t think software should be patented, for genes, evolution (or God depending on your belief system) wrote the code so she should get the patent. The anology would be if you reverse engineered bits of code in Android and patented that. However, you can patent cDNA so if you took out the introns (i.e. useless parts of the code) in the Android snippet, you can patent that.
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Apparently the ruling did not invalidate patenting cDNA. So the ruling is much, much weaker (in the direction of invalidating gene patents) than all the hoopla would indicate.
Patenting cDNA shouldn’t be allowable because of the simple combination of the impermissibility of patenting products of nature and the obviousness test (gene + convert_into_cDNA –> cDNA).
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The whole issue of ‘property’, from land and ‘improvements’ (buildings, maybe crops/gardens) and such, through patents and trademarks (liscenses, which could even include things like a birth certificate, green card, driver’s liscense,. gun background check, academic or professional credential) i find confusing.
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One can remember the French guy from the 1800’s (Proudhon) who wrote a book saying ‘property is theft’. (He’s also famous for creating the first publicly owned bank—depositors owned it—which was promptly shut down by the government bank—-another example of ‘enclosing the commons’ (eleanor ostrom, econ noble) since money is seen to be created and regulated elsewhere (which is one reason for the US revolution, since the US was printing its own money; in fact many of them).
I was amazed at the ‘arrogance’ of the lawyer for the company who took the scientists work as their own. (She didnt even think of patenting it. But I guess not too many people asked the indigenous americans whether they had any deed tio north america).
I’m amazed at the amount of free software around, besides blogs, etc. and now there’s MOOCs etc.. Where does one draw the line for what is free? To me, software is somewhere between a math theorem and a machine—the latter usually is thought of as patentable, the former more as a natural product (unless it turns out math is a purely social construction, like the laws of physics (see Alan Sokal in Social Text, who showed ‘objective nature’ derives from rhetoric and semiotics, or an article in Physics Essays by a Polish physicist (who ran for office on the far right ‘family party) which derives quantum theory from Berkeley’s idealism.
If there was a guaranteed income (like universal health care) issues of incentives might be less important which (like responsibility) is used to justify property and other rights. But the objection is noone would do anything except shop (for nonextistant products). I guess some sort of sliding scale could be created—maybe that company could be paid for some aspects that result from finding the gene (just as the discoveror ‘owns’ her position because she produced something recognized as real.
One can also go into issues like academic patents. Many universities are publicly funded, so one could argue any profits resulting from such patents should be returned to the taxpayer (eg lower tuition). Universities would argue we need the money for bigger computers, larger sports facilities, conference travel, renovated faculty clubs and provide free music for students. What is property and whose is it? (Ideally i wish i could not worry about going into a store which indicates either i have cash in my pocket or (to the owners) i’m shoplifting, nor about sharing my few ‘musical innovtions’ (which dont bring me any money, so they are more like a private fishing hole) but i do. ‘i get mine, you get yours’. .
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