Supremes: No Patents on Human DNA

by Robert VerBruggen

Several years ago, a company discovered the locations of two genes that affect the risk of breast and ovarian cancer, and for this it was awarded numerous patents. These patents gave the company the exclusive right to test for these genes in a given individual, as well as the exclusive right to create “complementary DNA” — a synthetic DNA that omits unnecessary information — based on the genes.

The Supreme Court has held:

A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but [complementary DNA] is patent eligible because it is not naturally occurring.

It also noted:

This case . . . does not involve method claims, patents on new applications of knowledge about the BRCA1 and BRCA2 genes, or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered.

The judges were unanimous in the judgment, though Antonin Scalia filed a concurring opinion.