Good Idea, Chap: Are Genes Patentable?

Link to podcast to follow

As I woke up today, I experienced a bizarre sensation which lead me to believe that  I was finally about to rid myself of the dreaded bronchitis that had tormented me since last Friday.

For the first time in four days, I actually felt hungry.

On my way to the supermarket, I stopped at three other supermarkets and got some snacks to get me going along the way.

Further to my almost inhuman hunger, I felt a sudden urge to listen to a couple of podcasts whilst I was doing my shopping.

And thank God I did (no distasteful joke intended).

The BBC Daily Podcast said something about US firms wanting to patent human genes and about the matter finally being put before the Supreme Court to decide on.

It took awhile for the above to properly sink in; as it did, I took a step back, hit the back of my head in the wall, apologised to the wall, turned around, saw it was a wall, shook my head, reassured myself that walls are inanimate objects incapable of any feelings, paid for my shopping and headed back home.

The podcast went on to say that private companies have successfully patented genes in the US for the past thirty years.

The case before the Supreme Court was Association for Molecular Pathology v. Myriad Genetics, 12-398 (Supreme Court 2013).  

The court heard oral arguments on Monday this week. The issue to decide was whether Myriad Genetics could obtain valid patents on two human genes, BRCA1 and BRCA2, which it had successfully isolated.

The genes in question were said to be key to discovering cases of early- onset breast and ovarian cancer.

For now, I shan't present you with my opinion on the matter; rather, I shall simply provide you with a brief account of the arguments for and against gene patenting.

(For a detailed account, please see <<http://www.patentlyo.com/patent/2013/04/amp-v-myriad-gene-patenting-oral-arguments.html >> )

Arguments for:

• Myriad had not only isolated the two genes but have also successfully applied molecular biology tools to create cDNA (i.e. cloned DNA). Arguably, then, they have created a new product.
• The novelty of their ‘product’ was the fact that they knew where to start ‘cutting from’ the DNA and where to stop doing so. An analogy with a baseball bat was used; a tree was not, in itself, a baseball bat until human ingenuity did not form into one and give it purpose.
• From a commercial point of view, a company would not bother investing in genetics research if it cannot patent the genes that it had discovered.

Arguments against:

• Myriad had not created anything novel; the genes were always there. Nature created them, not them. Analogy made with any other part of the human body.
• The cookie analogy by Justice Sotomayor- if you use eggs, flour, salt and butter, you can make a chocolate chip cookie. If you combust those in some new way and reach a different end product, you can patent that. You cannot, however, expect to be able to patent the basic items of salt, eggs, flout and butter.
• There was nothing novel; isolating the genes can be seen as simply ‘snipping’ them out of a chromosome

Some of the above arguments are quite shaky, others- quite compelling. The court’s decision is expected in June.

Until then, we can but speculate as to the outcome.

Next week, I shall opt to establish whether genes are patentable under English law.

Do drop me a line; any help will be appreciated.