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We Need to Change the Law if We Want Genes to Be Patented


Something is patentable if it is a human invention. Human genes are not human inventions, but part of nature. That is why I hope the Supreme Court rules against gene patents.

But the arguments in the Court seem steeped in policy rather than law. From the FNN story:

“Finding a new use for a product of nature, if you don’t change the product of nature, is not patentable. If I find a new way of taking gold and making earrings out of it, that doesn’t entitle me to a patent on gold. If I find a new way of using lead, it doesn’t entitle me to a patent on lead,” lawyer Christopher Hansen said. Allowing companies like Myriad to patent human genes or parts of human genes will slow down or cripple lifesaving medical research like in the battle against breast cancer, he said. 

But companies have billions of dollars of investment and years of research on the line, with Myriad arguing that without the ability to recoup their investment through the profits that patents bring, breakthrough scientific discoveries needed to combat all kind of medical maladies wouldn’t happen.  That concerned several justices. “Why shouldn’t we worry that Myriad or companies like it will just say, `Well, you know, we’re not going to do this work anymore?”‘ Justice Elena Kagan said. 

Because, Justice Kagan, that isn’t the Court’s concern. Rather, it is to apply the law as written unless unconstitutional — and certainly, the current legal requirements to obtain a patent are not that.

I am growing mighty tired of the Supreme Court determining what a “best policy” might be. That isn’t its job. If it is in society’s interest that body substances be patentable, Congress — not the Supreme Court — should change the relevant statutes. Otherwise, we lose the rule of law.