Friday, 14 June 2013 11:56

US Supreme Court: DNA cannot be patented

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The US Supreme Court has ruled that genes cannot be patented, but there's more to it than that.

Here's the bottom line. Myriad Genetics Inc. has patents related to two genes - BRCA1 and BRCA2, that are strong indicators of a woman's propensity to develop breast or ovarian cancer.

It was the result of a test based on these genes that Angelina Jolie recently underwent a double mastectomy.

A concerned group of scientists, the Association for Molecular Pathology, took a case all the way to the Supreme Court, arguing that DNA was a natural phenomenon and therefore unpatentable. And won. Kinda.

Many have labelled today's Supreme Court decision as a complete overthrow of DNA patents, but that is not the case. The decision certainly stops anyone from patenting a gene, but it doesn't stop them from patenting the specific test to detect that gene. Or from synthesising the specific DNA code from a bucket full of goop and patenting the process.

With that in mind, Myriad Genetics announced that just five patent claims, which involve isolated pieces of naturally occurring DNA were affected out of more than 500 separate claims in 24 patents.

The stock market wasn't sure how to deal with the ruling; initially sending shares soaring, only to have them plummet later in the day.

This decision should invalidate most of the DNA-based patents granted by the US Patent and Trademark Office over the past thirty years, but no mechanism has yet been put in place to re-examine them. One might assume that the USPTO is frantically burning the midnight oil figuring out how to deal with the huge problem it created 30 years ago.

"Myriad did not create anything," Justice Thomas wrote as part of the court's opinion. "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."

However, the court did allow the fact that synthesising the gene as part of a diagnostic test WAS patentable.


Justice Clarence Thomas, continued, "A naturally occurring DNA segment is a product of nature and not patent-eligible merely because it has been isolated." However, he later wrote that composite DNA "is patent-eligible because it is not naturally occurring."

While the decision makes life considerably easier for genetic researchers, it leaves the problem of how to create a diagnostic test for a gene no better off as any such test still has to be different to Myriad's (or anyone else's in some different area).

But then, that is no different to any other area of research. The problem-domain is open to all; only the solutions are subject to patent.

If anyone was wondering how we could get Angelina Jolie, the US Supreme Court, genetic research and boobies into a single report. This was it!

Many commentators have argued that this decision is the death-knell of software patent too, but the situation is (unfortunately) quite different.

The key argument in this case was that patents were being applied for on the basis of 'discovered truths' whereas the system was intended for inventions.

The anti-software patent campaigners are (generally) pushing a different argument - that many (perhaps most) software patents are for obvious methods that would be the first reasonable solution any adept practitioner would arrive at. In other words, there is little that is particularly innovative in a software patent; it reflects nothing more than being first to claim an idea.

As much as this writer disagrees with both DNA And software patents equally, this particular judgement has much bearing on the former, and little on the latter.

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