Reversing a longstanding policy, the federal government said on Friday that human and other genes should not be eligible for patents because they are part of nature. The new position could have a huge impact on medicine and on the biotechnology industry. The new position was declared in a friend-of-the-court brief filed by the Department of Justice late Friday in a case involving two human genes linked to breast and ovarian cancer.
There has been a long argument about whether genes can be patented like other inventions, or whether they are a natural thing and cannot be patented, or maybe they're something else altogether where the science (as usual) is outstripping the cumbersome and ancient legal statutes.
“The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is ‘isolated’ from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth,” the brief said.
Analogical arguments are slippery beasts at the best of times, especially since genes are not cotton fibres, nor are they coal. It seems to EoR, however, that it is logically intuitive that genes are not 'inventions' but rather natural products.
Biotech companies (especially Myriad Technologies which has been at the centre of this debate) are not happy, but EoR wonders why they can't patent the tests to determine the presence of various genes. Surely this is the intention of patent law? Build a better mousetrap, and you are entitled to the income from that invention. If someone else builds an even better mousetrap, then that's the free market system at work. Patent the idea of a mousetrap however, and no one else can build another mousetrap. Or, instead of patenting your new lightbulb or method of generating electricity, why not patent electricity instead?
The new stance, the article notes, does not prevent modified genes from being patented and, again, that would seem sensible since they are much more clearly 'inventions'.
Myriad Technologies is appealing the new stance and EoR expects that the matter will not be definitively decided for some decades to come.