There was a rare convergence of common sense, the law, science and all of the applicable political “isms” last week in the Supreme Court's ruling that human genes cannot be patented.
Simply put, separating a gene from its surrounding genetic material “is not an act of invention,” wrote Justice Clarence Thomas for a rare unanimous court.
But that's exactly what Myriad Genetics of Salt Lake City did. And the U.S. Patent Office awarded Myriad patents for two mutated gene sequences, the existence of which can predict if a patient is at high risk for breast or ovarian cancer.
Yet the patents on the unpatentable had a number of perverse effects. Not only did they allow Myriad to monopolize the price of testing, they limited the ability of other scientists to conduct their own research on the genes.
The bottom line of the ruling is that research will become more competitive (the court held that Myriad and others can seek to patent synthetic, “complementary” genes of their invention, and their testing and screening processes can remain protected), the cost of testing for these marker genes will fall and the door will be flung open to more and varied research sure to result in even greater advances.
Otherwise, as Mr. Justice Thomas noted, there would be “considerable danger” in stifling innovations that would be the antithesis of patents —“which exist to promote creation.”
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