Reactions to the Supreme Court Ruling on Patenting Human Genes

by Pete Shanks

Originally published on Biopolitical Times

Protester outside the Supreme Court

The unanimous Supreme Court decision [pdf] (June 13, 2013) that human genes may not be patented was greeted with unbridled enthusiasm by the large coalition of plaintiffs and supporters. Early reactions concurred that the decision is indeed a momentous one.

The Center for Genetics and Society response is here. For background, the amicus brief that CGS and allies filed with the US District Court in 2009 is described and linked here; the 2012 follow-up brief to the Supreme Court is covered here and here. Similar briefs were filed by many others.

The NBC News headline summed it up:

Supreme Court says genes can’t be patented; patient advocates and researchers cheer

Press statements from the plaintiffs and their supporters came thick and fast, including these:

Myriad tried to spin the decision as a victory, by highlighting the Court’s explicit refusal to rule on “method claims” or “the patentability of DNA in which the order of the naturally occurring nucleotides has been altered,” and asserting that its cDNA claims were upheld. Possibly as a result, Myriad’s shares initially rose. However, Mark Lemley, a Stanford law professor, told Nature News that “cDNA may not end up being the subject of valid patents after all.”

Some commentators called the ruling a “mixed decision” (Fierce Biotech, Bloomberg), or “scientifically inaccurate” (Forbes) and filled with “genetics errors” (PLoS blog) and “ignorance” (New Republic). In this, they seemed to be building on the brief concurrence by Justice Scalia, who was “unable to affirm those details [of molecular biology] on my own knowledge or even my own belief.” However, in broad terms Scalia unequivocally agreed with the decision’s key finding:

It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state …

Legally, any scientific quibbles seem unlikely to become significant. Lori Andrews, of the IIT Chicago-Kent College of Law, who has been involved in these issues since the early days of the Human Genome Project, and helped to craft the lawsuit, has no doubt. From her excellent analysis of today’s Supreme Court ruling:

If I spend a lot of money on a telescope to discover a new planet, I can’t own the planet. A brief filed by the Department of Justice said that it was an error to let Myriad have the patents in the first place. So, paying Myriad nearly $4000 for each look at your breast cancer genes was like having to pay a car thief for the right to drive your own car.

Applause to the Supreme Court for getting this one right!

Bold in the original, and deservedly so.



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