The Supreme Court will decide whether human genes can be patented. From the Reuters story:

The nation’s highest court in a brief order agreed to review a case over whether Myriad Genetics Inc may patent two genes linked to hereditary breast and ovarian cancer. In a 2-1 ruling on August 16, a panel of the U.S. Federal Circuit Court of Appeals in Washington, D.C., upheld the biotechnology company’s right to patent “isolated” genes that account for most inherited forms of the two cancers.

Actually, my headline is a bit misleading. If the Supremes allow genes to be patented, that will not mean that the patent holder actually own bits of you. But it would mean that the company would possess the exclusive right to commercially benefit from the use of the patented genes in the manufacture and testing of products during the term of the patent. If others wanted to use the same gene in research or manufacture, they would have to pay a licensing fee.

Here’s the problem: A patent is supposed to protect a human invention. A gene — even if isolated — is not a human invention. It occurs naturally. In that sense, I don’t see the controversy. Genes should not be patentable.

But more than the niceties of pure law are involved. For example, opponents of patenting genes claim — and I think they are right — that allowing a natural part of the body to be patented opens the human body to commoditization. Plus:

Sandra Park, a lawyer for the ACLU Women’s Rights Project who worked on the appeal, in a phone interview called Friday’s decision to take the case a “huge step” toward ensuring the provision of needed medical care and research and that patients can access their own genetic information. She estimated that more than 4,000 of the roughly 22,000 genes in the human genome have U.S. patents. “For many people, understanding their genetic risk of disease is crucial to planning medical care,” she said. “People need to understand that risk so they can plan for screening and other major medical decisions with their doctors.”

Supporters of the patent claim that such protections are essential to the overarching research project:

Supporters of Salt Lake City-based Myriad, in contrast, have said denying patent protection could slow advances in personalized medicine, which uses genetic tests to identify specific therapies for individual patients. Peter Meldrum, Myriad’s chief executive, said in a statement that the Supreme Court’s ultimate decision could affect the providing of medical treatment to hundreds of millions of people. He said Myriad’s own diagnostic test has helped nearly 1 million people learn about their risk of hereditary cancer. “The discovery and development of pioneering diagnostics and therapeutics require a huge investment and our U.S. patent system is the engine that drives this innovation,” he said.

I’m one of those old fashioned types: If the law needs to be modernized for the good of the Republic, by all means fix it. In other words, if our science has moved to the place that current parameters of patent law unduly stifle progress, revise the definition of what is patentable, and the terms thereof, via the legislative process. But don’t have judges just decide that because they no longer like the policy consequences of the law, they can just unilaterally change its definitions and meaning.

Right. I knew you needed a good laugh.

(In a related story, the European Court refused to allow the patenting of embryonic stem cell products because they are derived from destroying embryos.)

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Wesley J. Smith, J.D., Special Consultant to the CBC
Wesley J. Smith, J.D., Special Consultant to the CBC