Supreme Court Rules Human Genes Cannot Be Patented

*subhead*Yay! Common Sense.*subhead*
Political cartoon by David Horsey

Almost a year ago, I wrote "Owning Genes" here at Creative Minority Report. In that post I discussed the patenting of naturally occurring human genes and how that affects your health care. For decades, the U.S. Patent and Trademark Office has been issuing patents to companies and research institutions for discovering human genes. Genes that God made. Those patents should never have been awarded. If you cannot patent a nose, then you shouldn't be able to patent a naturally occurring gene either.

Over the last year, I have kept you up-to-date on the legal back and forth. First, the courts said naturally occurring human genes are not patentable. Then, a higher court said they were. Then, the lower court had to agree. Then, the Supreme Court said to the lower courts, "Not gonna hear the case, but see our latest ruling and try again."

Finally, the Supreme Court decided to hear the case brought by, none other than, the ACLU against Myriad Genetics and the U.S. Patent and Trademark Office. The highest court in the land has unanimously made the right decision: naturally occurring genes (your genes) are not patentable even if they are isolated from your body. 

From CNN:
The Supreme Court unanimously ruled Thursday that human genes cannot be patented.

But in something of a compromise decision, all nine justices said while the naturally occurring isolated biological material itself is not patentable, a synthetic version of the gene material may be patented.

"Genes and the information they encode are not patent-eligible under [federal law] simply because they have been isolated from the surrounding genetic material," said Justice Clarence Thomas for the 9-0 court decision.

The case involves Utah-based company Myriad Genetics, which was sued over its claim of patents relating to two types of biological material that it identified -- BRCA1 and BRCA2, whose mutations are linked to increased hereditary risk for breast and ovarian cancer.

Since Myriad owns the patent on breast cancer genes, it is the only company that can perform tests for potential abnormalities....

"Myriad did not create anything," said Thomas. "To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention."
The fact that the decision was unanimous signals that this was a total no-brainer.

This is such great news for young and old. I pray this will end the practice of companies keeping genes hostage thereby preventing broader research into genetically-linked disease. I also hope this will open up the genetic testing market so that patients are not forced into going to one company to find out about their health and so patients will now be able to get a second opinion on their test results.

I quote this a lot but it is always good to be reminded that the Church is a wise and relevant source for guidance on genetics and biotechnology. Pope John Paul II wisely said in 1994:
On this subject, we rejoice that numerous researchers have refused to allow discoveries made about the genome to be patented. Since the human body is not an object that can be disposed of at will, the results of research should be made available to the whole scientific community and cannot be the property of a small group.
Today, I also rejoice!

Rebecca Taylor blogs at Mary Meets Dolly


  1. A no-brainer? I don't think so. Not with the US Patent Office arguing just the opposite. And if you came up with a way to grow a nose in a petri dish, separate from a human body, I would think you would still be able to get a patent on that process and a nose made by that process.

  2. Myriad did not invent the BCRA1 and BCRA2 genes. They did not "grow them up" independently from any human being. They didn't invent the sequence. All they did was isolate a naturally occurring gene from real people and make a bunch of copies of it so they could get enough quantity to test it. (In other words they cut off a nose and used it for making a mold.) I have done the the same thing for thousands of patients. I never once thought that I DNA I isolated was so fundamentally different than it was when it was in the patient's body that it was patentable. (If it was so fundamentally different, I would bother testing it.) This is evidenced by the fact that I always put the patient's name on the tube, because it was their DNA.

  3. Opps, I meant "wouldn't bother testing it."

  4. Ooopps again, its BRCA1 and 2. I shouldn't comment while tired!

  5. A second and third generation DNA belongs to the person whose DNA is cloned. IF the DNA is grandfathered it is not synthetic. Cloned DNA is not synthetic. If scientists believe that they can make a synthetic DNA, what are they waiting for? Oh, I forgot, our tax money.

  6. Rebecca, I doubt that you could tested patients' DNA as you have said without the instructions on how to test those genes, as Myriad did. The human genome is awfully big. This will be a real life demonstration of the fable by Aesop of the Goose that laid the Golden Eggs. Yes, we'll get the BRCA1 and 2 tests done more cheaply. And I am sure we will still have researchers looking for more similar genetic factors for other diseases. But I seriously doubt we will have research groups racing each other to make these discoveries. As we did with BRCA 1 and 2. (Would you invest your 401(k) money in a company in Myriad's shoes?)


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