Thankfully another blow has been made against the ridiculous practice of granting patents on human DNA.
The Justice Department filed an amicus brief in a case related to patents held by a company called Myriad Genetics that claim ownership of a gene and two mutated forms of that gene which is correlated with the development of breast cancer. An amicus brief is a document filed by a "friend of the court," someone not directly involved in the case but who has helpful knowledge relevant to the situation. The DOJ took the position that naturally occurring genes are not patentable.
In the case in question, Myriad Genetics is trying to overturn an earlier ruling that struck down all of their patents related to a genetic test for the likelihood of developing breast cancer at some point in a person's life. While that decision did go too far because it struck down all of the patents related to the test kit itself, part of the ruling should stand. There is no unique intellectual property to be found in something that everyone has... DNA for example. Products of nature are not patentable for this reason. You cannot pick up a piece of coal and claim a patent on coal. In the analogy that this DOJ brief makes, you cannot pull a cotton fiber out of a cotton plant and then claim a patent on cotton. You did not invent the cotton. Nature invented the cotton, you just picked it.
Myriad had claimed patents on isolated DNA sequences. They did not invent the sequences, they simply isolated them from a longer strand of DNA. What this ended up doing was binding anyone else from being able to test for that gene or use the gene in any manner. If you wanted the breast cancer test, it had to come from Myriad and no one else. Patents are supposed to spur innovation, not clamp down on it. With a valid patent, once granted, all details of that patent are made freely available to anyone to inspect. In recent years, several websites have been put up that let you do just this: search patents and look at their contents. While you cannot commercially benefit from the information inside, you can use that knowledge to improve upon it, make it better, push forward the state of the art and then make money on your new improvement. Patents allow you to benefit from your hard work, while still letting others become familiar with the technology so that innovation continues. How is anyone supposed to push forward the state of the art of a strand of DNA? DNA is not an invention of any research lab, nor is any segment of DNA.
Patents on human genes have been around for a long time. It is expensive to isolate specific genes and prove that they have a specific function. Some companies have claimed that patents on these identified sequences are necessary so they can recoup the money spent on research. I call that view lazy. If you want to recoup the money spent then patent a means of targeting the gene. Patent a means of deactivating, activating, slowing down, speeding up, etc. the action of that gene. Those are real inventions. Discoveries, even important ones, are not inventions.
The valid patents in this case is the specific methodology used and physical means to test for the mutated gene in other people. This is an invention. This advances the state of medicine and can inspire others to improve upon this test. The patents on the genes themselves should all be ruled invalid. That is the position that the Justice Department is taking in this amicus brief. It is completely rational and clear headed and I believe that all efforts to overturn patents on naturally occurring gene sequences should be supported.
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