The Supreme Court hears cases of constitutional import that make front-page headlines, but also wrestles with issues that make you stop and think about how the world is changing. Yesterday the Court heard argument in a case in the latter category, and the issue is whether human genes should be patentable.
The case involves the legality of a patent that one company, Myriad Genetics, holds on genes that can identify an increased risk of breast and ovarian cancers. Myriad uses the patents to test women for mutations that can indicate risk and charges thousands of dollars — typically paid by insurance — for the tests. Opponents of the Myriad patent, and other human genetic patents, say there is no inventive process involved and the patenting of human genes has impeded research, medical progress, and access to testing. Myriad and its allies argue that the process of identifying and isolating the genes satisfies the inventive requirement and that disallowing patents on genes would affect billions of dollars in investments and patents on useful things like genetic tests and biotech drugs and vaccines.
At yesterday’s oral argument, the Court’s questions indicated some skepticism about the patentability of human genes and whether they really involve the inventive process that is the focus of patent rights — although lawyers will tell you that drawing conclusions from judicial questions is a risky business.
The issues are intriguing. If we can target human genes that will allow us to detect and avoid fatal diseases like cancer, we’d like to think that such discoveries would be used for the benefit of all mankind. At the same time, however, what companies are going to spend billions of dollars going through the laborious process of identifying those genes without some assurance that they will be able to recoup those costs, and a profit besides, through the protections afforded by patent law? And how much invention should be needed to secure a patent, anyway? If genes can be patented, should we all pony up the patent application fee and try to patent every gene in our bodies, just to be on the safe side?
The Court will try to answer these questions before this term ends in June.