Thursday’s U.S. Supreme Court ruling against the patenting of natural genes is a major milestone in patent law and has significant implications for the future of technology. For many years now, the U.S. Patent Office has allowed the patenting of natural genes, perhaps most famously the BRCA1 and BRCA2 genes which were patented by Myriad Genetics. This resulted in tests for mutations of these genes remaining exclusive to Myriad. It also kept them unnecessarily expensive – on the order of $3,000 per test. Because mutations in these two genes greatly increase the risk of breast and ovarian cancers, such tests are a valuable tool for identifying at-risk women. But the high cost prevented many from having the test, particularly within the U.S. health care system.
The U.S. Supreme Court ruled unanimously that natural genes can not be patented, saying it manifestly violates patent rules. Put simply, laws of nature, physical phenomena and abstract ideas are not patentable.
The victory is somewhat pyrrhic in that the patents for BRCA1 and BRCA2, which were filed in 1994 and 1995, will expire in 2014 and 2015, respectively. Had this decision been handed down years ago, one wonders how many lives might have been saved?
Nevertheless, this ruling has significant value looking ahead, and not only for genetics. There’s a wealth of knowledge waiting to be gained from the natural world. This knowledge will lead to significant innovations, but in the face of incorrectly interpreted patent protection, such innovation could be tremendously stifled. The natural world is a nearly boundless legacy that has been left to all of us; it would be the worst kind of injustice to have it benefit only an exclusive few. The ability to patent methods which are applied to natural genes and other natural processes will still exist. The development of synthetic DNA (cDNA)* and processes such as cloning will also still be patentable. Similarly, discoveries relevant to other fields such as nanotechnology and material science will be patentable in so far as they involve new methods and processes. But simply identifying and patenting natural phenomena will be out of bounds.
It’s important to remember that as well as granting patents for the protection of inventions, the Patent Office exists to “promote the industrial and technological progress of the nation and strengthen the economy.” This is only right in that it’s a public institution. Unfortunately, today’s ruling demonstrates the difficulty our institutions have, and will continue to have, in dealing with a rapidly changing world.
Certainly there are those who won’t be happy about today’s Supreme Court decision. But despite the changes it brings, innovators will still have plenty of intellectual property to protect and profit by. In the end, all humanity deserves to benefit from the world that gave us life and made all of this possible in the first place.
For a more in-depth analysis of this complex topic, check out Randall Mayes excellent article in the July-August issue of THE FUTURIST.