No, a unanimous Supreme Court ruled Thursday, genes cannot be patented, no matter how much effort a company expends in finding them. It is the right call but can’t be the last word. Congress must explore how to encourage useful genetic research while allowing the fruits of that inquiry to be used as freely as possible.
At issue before the court was a series of patents that the biotechnology firm Myriad Genetics obtained on two genes, BRCA1 and BRCA2. Certain mutations of these genes are associated with a much higher risk of breast and ovarian cancer. The company sorted through the massive strand of genetic code to find them and determine what they look like normally. This knowledge allows doctors and medical researchers, after fairly simple genetic analysis, to determine whether a person’s genes look different in ways that indicate that higher risk of illness. With the patents in place, only Myriad or those to whom the company gave permission were allowed to isolate and examine the genes.
The problem with that, according to the court, is that “Myriad did not create anything.”
“Groundbreaking, innovative, or even brilliant discovery does not by itself” warrant patent exclusivity, Justice Clarence Thomas wrote for the court, if the resulting discovery is a naturally occurring thing. Isaac Newton couldn’t have patented the apple he watched fall off that tree, nor the theory of gravity he subsequently developed. He could, however, have patented a new tool that relied on a mathematically rigorous understanding of gravity.
Supporters of the court’s stand say that unwarranted patent barriers will no longer impede valuable genetic research or the practice of individualized medicine. Since patent claims have been made on something like 4,000 of the 23,000 human genes, it could have been extremely costly to sort through a patient’s genetic code to determine the particular medical risks that person faces. Following the ruling, doctors and researchers won’t face a thicket of gene patents, and patients will now be able to get second opinions from different genetic-analysis firms instead of having to rely solely on testing results from patent-holders.
Those benefits are compelling. But policymakers must also keep in mind the “extensive effort,” as Justice Thomas put it, of companies such as Myriad that has enabled doctors and researchers to know what to look for and where in miles of genetic code. The company can rightly claim that its work has advanced women’s health.
Awarding patents is one way government can encourage such effort, but it is not the only way. Congress should examine whether government-funded research and persisting market opportunities are enough to motivate genetic research, or whether it should offer more narrowly drawn patents, prize money or other new incentives for companies to continue sorting through the genome.