You may not patent a “product of nature.” You may not, for example, search high and low in the rainforest, find a valuable plant, and patent it. Why then may you patent a gene?
The answer could turn out to be that you may not. Last week, according to a report in The New York Times, a Federal district judge invalidated patents on human genes BRCA1 and BRCA2, on the grounds that they are products of nature. Both genes are related to breast cancer and are often used to decide who may be at risk for breast cancer. The judge, Robert W. Sweet, ruled that merely isolating a gene does not make it patentable and indeed called arguments to the contrary “a cheap lawyer’s trick.”
Supporters of the patent note that thousands of genes have been patented and fear that private funding for the development of new medical techniques may be at risk if the decision is upheld. On the other hand, according to an earlier article in Science, the patent owner, Myriad Genetics, has been accused of interfering with other people’s research into breast cancer and the BRCA genes. Indeed, according to Science, Myriad Genetics has been charged with using “its monopoly to impede rival research, restrict clinical practice, and deny people access to medical information.” I have not read the judge’s (lengthy) decision and do not know how he ruled on this accusation.
From my point of view, the decision is at least consistent: if you may not patent a product of nature, then you may not patent a product of nature. I have never understood why the Patent Office permitted genes to be patented in the first place. Neither, evidently, did Judge Sweet.