Finally, Some Sense on Patent Nonsense

Today the Supreme Court threw out a lower court ruling that allowed human genes to be patented. They sent the case back to the lower court in light of their recent decision that laws of nature can't be patented.

Finally, a ray of light on the Intellectual Property front. The idea that human genes that were simply found could be patented is, so to speak, patent nonsense. The company that found the BRCA gene, which predisposes those who carry it to several types of cancer, had created an exorbitantly priced test. Their claim of a patent on the gene itself was used as a legal hammer to prevent others from researching the gene and diseases it caused. The gene is found in predominantly Eastern European Jewish descent.

The company, Myriad Genetics of Salt Lake City, Utah, argued that they should be rewarded for years of research. But the reality is that it's not the science being rewarded, but the legal chicanery that pushes the bounds of common sense and tries to patent things that have existed in nature for thousands if not millions of years.

The discovery of this gene and its function hinged on genetic sequencing and analytical techniques that other scientists developed long ago. If Myriad have developed a new and innovative test for the gene, that would be patentable. But since Myriad used techniques others developed in their research, and had done nothing original, their lawyers decided to pull a fast one and patent the gene instead.

The argument that this will hurt scientific research and discourage development of future treatments is totally bogus. Myriad did the minimum possible here: they developed a test for a gene. They did not find out how the gene causes cancer, find a treatment or a cure. They just sat back to cash in on it. In fact, Myriad was the one standing in the way of scientific progress: the patent on the gene gave Myriad the ability to sue other researchers investigating the gene, preventing them from looking for a treatment or a cure.

Now that would be something worth patenting.