The Human Genome: Despite the good news that the recent U.S. Supreme Court decision
brings, people might be surprised to find out that much of the human genome is already patented: “According to researchers at Weill Cornell Medical College in the US, patents now cover some
40% of the human genome,” BBC News says.
Photo Credit: BBC News
When the U.S. Supreme Court ruled unanimously (9-0) that natural occurring human genes cannot be patented, it was a good judicious ruling. But that does not suggest in any way that the justices have a grasp, let alone a clear understanding, of science—most notably the complexities of modern medical science. This lack of scientific and medical knowledge can become a problem, since the courts will be called upon to consider and rule on complex biotech issues in the years to come.
Such is what a recent article in Slate, by Noam Prywes, focuses on:
Fortunately, this time the court made a decision scientists, doctors, and patients will be happy with. Justice Thomas, writing for the court, pointed out that “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry. … Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes ‘new ... composition[s] of matter,’ §101, that are patent eligible.”
From a biological perspective, the issues in this case seem strange. The court spent a lot of time during oral arguments trying to find the right analogy to explain exactly what the scientists are doing and whether or not the product of their work is patent-eligible. Removing a gene from the genome became taking a branch off a tree or a medicinal leaf from a plant in the Amazon. In the ruling itself, there was a lengthy opening section explaining the central dogma of molecular biology. It reads like an earnest seventh grader’s book report. The section explains, in a simple way, the process of protein production, focusing on which reactions are and are not done “naturally.” This was used to set up the ruling that cDNA is patentable because it is not naturally present within human cells. The court ruled that the cDNA patents do not violate Section 101 of the Patent Act (though they “express no opinion whether cDNA satisfies the other statutory requirements of patentability”). Well, what exactly is cDNA and why isn’t it natural?
When technical issues are at the heart of a case with broad public implications, a nuanced understanding of those issues is essential. Not everyone needs to understand molecular biology, but the court should have more than a haphazard understanding if it is going to continue to sort out biotech cases, especially ones with the potential to have so much impact on medical research and patient care.Again, it all comes down, as a minimum, to basic scientific literacy. That none of the justices have a science background and are all lawyers might indeed be troubling. Or not. As I have argued elsewhere, the justices do not need hold a doctorate in biological sciences, but they do need to consult those who do, and more so consider their views seriously. If not, we might come to a point where ignorance of science will lead to the wrong decisions for humanity. We were fortunate with this ruling but we might not be the next time, as medical science progresses quickly into uncharted territory.
You can read the rest of the article at [Slate]