By Wesley J. Smith, J.D., Special Consultant to the CBC
A patent is allowed if something is a human invention. Naturally occurring elements and entities should therefore, not be patentable. And now, the Supreme Court has overturned a lower court case that upheld a patent for a method of testing for genes. From the AP story:
The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. Myriad’s BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer. The American Civil Liberties Union has been arguing that genes couldn’t be patented, a position taken by a district court judge but overturned on appeal.
Embryonic stem cells should also not be patentable as they occur naturally. Nor should adult stem cells. Induced pluripotent stem cells, on the other hand, should be patentable as they don’t occur naturally and were human inventions.
According to a better story in the Wall Street Journal, the case has even broader application as it is ordering the appeals court to revisit its former ruling regarding a test for the mutant genes. From that story:
At issue is the validity of a series of Myriad patents relating to two genes known as BRCA1 and BRCA2. Variations in those genes can be used to identify patients at heightened risk for breast cancer and ovarian cancer. The patents effectively allow Myriad to be the exclusive U.S. commercial provider of genetic screening tests for these diseases.
This is a very arcane area of law. But this could impact a lot of research into genetic testing and manipulations. Perhaps even methods of derving naturally occurring stem cells.
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