U.S. District Court Judge Robert Sweet ruled that patents on DNA currently owned by Myriad Genetics are invalid.   Judge Sweet’s decision (PDF) could have far-reaching implications for corporations heavily invested in owning our biological codes.  The issue is that corporations register patents for human genes, which are, unquestionably, naturally occurring and therefore not encompassed by patent laws.  Of particular interest is that the judge’s ruling also invalidates patents on processes for identifying genetic mutations.  One aspect of the ruling appears based on a ruling in a previous case decided on April 3, 2009 (PDF) that says, “…granting patent protection to advances that would occur in the ordinary course without real innovation retards progress.” 

What strikes me most about this is that it has taken this long to finally reach this conclusion, which is not only bathed in legal sense, but overwhelmingly awash in common sense.  Patents exist to protect inventions – new creations – providing limited times of exclusive rights to creators of new creations of originality that have a societal value, essentially creating limited-time monopolies on what is patented.  The patenting of naturally occurring substances is not included. 

One of the main points of debate in the patentability of genes involves products based on a particular genetic structure.  There is a distinct difference between the element itself – in this case, the genes – and a product that incorporates a particular element.  I’ve always had difficulty drawing a useful distinction between the concepts of patenting a gene versus patenting a body part.  The idea of owning rights to something that is naturally occurring is contrary to patent law, not to mention that it is morally and ethically counterintuitive.  One can patent a formula – a new drug for instance – but not necessarily each of the specific ingredients individually.  

This ruling should have a degree of impact on healthcare in America, as well, since this type of patent has been clearly shown to drive up costs for testing for mutations and predispositions to particular diseases.  In other countries where such patents have been challenged, or ignored entirely, medical tests for such genes and their medical implications for patients are significantly reduced by as much as ten times making costs in those countries as low as one tenth the cost of the cost in the U.S.  

This type of patent creates unnecessary obstacles to healthcare in favor of profits.  In a 60 Minutes video report, a woman relates her story of being unable to screen for a breast cancer gene because the Myriad Genetics lab would not accept her insurance, even though her insurance covered the test, which is a simple blood test that is readily available in other countries at a fraction of the cost that lab currently charges.  

Another confusing consideration in which this ruling may or may not have impact is in the area of genetically modified seeds and other food products.  The patents for genetically modified seeds and foods are different from the patents for human genetic information, and so the implications of this ruling as it relates to seeds and foods are unclear and it will be interesting to see the future effects, if any. 

Monsanto seed Company currently sues farmers who do not use Monsanto genetically modified seeds when Monsanto seed is blown into their fields by naturally occurring winds.  It is not unreasonable to speculate that the currently accepted legality of Monsanto’s lawsuits might ultimately be affected in the future.  It would make more common sense to allow farmers to sue Monsanto for contaminating fields with Monsanto seed, or to perhaps allow farmers to charge Monsanto for the use of their land and labor. 

Be that as it may, it is difficult to logically argue that farmers who make no intentional attempt to plant Monsanto’s genetically engineered seeds, but whose fields become contaminated with that seed, should be legally or financially liable to Monsanto.  Monsanto’s efforts to put local businesses out of business, to monopolize seed crops, eliminate local seed suppliers, and eliminate the possibility for farmers to save back seed from crops for future planting is an example of the kind of corporate dominance that is choking America and destroying the environment.  There is no doubt these corporations will be spending millions of dollars to fight any opposition to their ability to own naturally occurring substances. 

On an even more speculative level, I am wondering how this might eventually play into the entire abortion debate revolving around the question, “When is a human being a human being?”  And at what point is it patentable?

Obviously attesting to implications for corporate profits in this issue is the list of companies that have filed briefs in previous suits: “Eli Lilly & Co., Amylin Pharmaceuticals, Johnson & Johnson, Novartis, GlaxoSmithKline, and the Biotechnology Industry Organization”, to name a few.  At some point, Americans must decide that they do not want to be a cutthroat culture that puts profits over humanity.  So far, that decision has not occurred on a large enough scale to bring a realization to that perspective.  

A simple table of some gene patentability pros and cons can be found here.