Gene Patent Case Trucks On

On March 29th a federal district court in New York made a ruling that, taken at face value, turns America’s approach to the patent protection of genes on its head. A coalition led by the American Civil Liberties Union (ACLU) had challenged the very basis of Myriad’s patents. The nub of the case was this question: “Are isolated human genes and the comparison of their sequences patentable things?”

Until now, the answer had been “Yes”. But Robert Sweet, the presiding judge, disagreed, at least as far as the BRCA genes are concerned. After weighing up Myriad’s arguments, he ruled: “It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issues directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.” Mr Sweet reasoned that DNA represents the physical embodiment of biological information, and that such biological information is a natural phenomenon.

It's like this. If a lab extracts a person's DNA and manipulates it, they can isolate a specific gene, and because it's got "markedly different characteristics from a gene that occurs in the human body" that lab may patent it. So let's say you, then, extract your own DNA, isolate the same gene, that lab can sue you for infringing on their intellectual property.

Let's put aside for a moment the absurdity of allowing a company to patent any part of any genome, be it human, yeast, or copyright and patent attorney, something that comes from our bodies, an exception for trafficking in human tissue tied to a monopoly, patenting a gene is absurd for yet another reason.

If you cut off your hair and fashioned a wig from it, something that absolutely is "markedly different" than hair on a human body, under this kind of law, you could patent it and gain a monopoly on wigs.