Gene patent decision: In Plain English
on Jun 13, 2013 at 11:55 am
The Supreme Court long ago ruled that an inventor who discovers a phenomenon in nature, or figures out a “law of nature,” cannot get an exclusive right to use or sell that by obtaining a patent from the federal government. Natural phenomena are the basic tools with which every would-be inventor starts, so locking up the right to use them in a monopoly held by a specific patent owner will frustrate others who might want to look for new ways to interpret that phenomena, the Court has said.
The exclusion of natural substances from eligibility for patents was the theory on which the Court relied Thursday in its unanimous ruling that a company cannot get a patent monopoly on the use and study of human genes that it isolates in the bloodstream, and them takes them out — without changing their natural character — for research.
The case involved a Utah company’s patent for having isolated, outside the human body, two basic genes that contain natural phenomena which suggest that a woman who has them is at significantly higher risk of developing either breast cancer or ovarian cancer. The company had claimed that the act of locating these genes in blood, and then extracting them for study, was a true invention, something that did not exist before.
The Court said the company actually did not create anything at all, but simply extracted the genetic material from its location in human blood, and setting it apart for study.
The Court, however, said that the company might be eligible to get a patent when it created a synthetic form of those genes — in other words, a laboratory imitation of them. Such imitations, according to the ruling, do not exist in nature, and so do not run counter to the rule against patenting nature.
(The decision was announced in the case of Association for Molecular Pathology v. Myriad Genetics.)