Supreme Court Limits Gene Patents

Today in the "breast cancer gene" case (Association for Molecular Pathology v. Myriad Genetics), the Court unanimously held that a naturally occuring gene sequence cannot be patented simply because it has been isolated from other parts of the overall DNA sequence; it falls within the principle that one cannot patent a product of nature.  At the same time, the Court also unanimously held that cDNA, a synthetically produced version of DNA with the elements ("introns") removed that do not "code" to produce amino acids and proteins, is not barred from patentability by the "product of nature" doctrine.  The opinion is here.  Coverage from the SCOTUS Blog, with directions to other coverage, is here and here.

A very quick comment:  The opinion upsets the practice of the Patent Office practice of handing out patents on gene sequences themselves (while leaving the biotech industry with other means of securing returns on investment).  The line between naturally occurring phenomena and human creations is not always easy to draw, and the Court's language includes several ambiguities; and one can argue that the Court should have excluded the synthetic "cDNA" as well.  But the decision does reaffirm a meaningful exclusion of "products of nature" from patentability in this context, which is both consistent with our deep moral traditions and important for patent policy.  It limits a patentholder's ability to get expansive control over all the uses of a gene sequence for testing, therapies, counseling, etc.  It also harmonizes in general with the notion, strongly supported by our theological traditions, that features of nature are not subject to human ownership: they are left by the Creator for the use of all.  (Particular instances of them can be owned--I can own a naturally occurring tree, but not the DNA sequence that generates such a tree--although that matter is different of course with human beings.)