About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, April 04, 2010

New York court strikes down gene patents

I don't know whether the original judgment is available - but over at Science Progress, Andrew Plemmons Pratt reports that US District Court Judge Robert Sweet handed down his judgment last week in the long-running dispute about gene patents. This case is based on litigation brought by a coalition of groups that have sought to challenge the controversial patents owned by Myriad Genetics on two genes connected to breast and ovarian cancer.

The ruling went further than invalidating the patents on the relevant gene sequences themselves. It also invalidated Myriad's patented methods on the processes for analysing the genes.

There has long been debate as to whether it is legitimate to patent things found in nature, such as DNA sequences. Prima facie, such things should not be patentable, as they are not inventions or anything similar, any more than other things that scientists discover (the moons of Jupiter, perhaps) are inventions. In principle, it should, perhaps, be possible to patent methods for isolating and identifying genes, processes that make use of genes, genes that have been modified to achieve some purpose, but not naturally-occurring DNA sequences. It is well known that this kind of distinction has become virtually meaningless.

In addition, there is an economic argument that patents on short sequences of DNA are contrary to public policy because they actually hinder innovation. A tragedy of the anti-commons is created in which highly fragmented property rights can mean that no one in particular is able to proceed to apply scientific knowledge in useful ways. Or so it is argued.

And of course, there are also various spooky arguments, such as that genes are somehow the province of God or a spiritualised Nature that we must not violate.

I agree with the argument that naturally-occurring sequences of DNA are not themselves the kind of thing that should be patentable, and that patents purporting to relate to something else (such as processes) are often contrivances. Still, I'd like to know more about why Myriad's process patents were struck down. If I find the actual judgment, I'll comment further.

The case will be appealed, and it may even find its way to the US Supreme Court. This is a fundamental issue in intellectual property law, and with far-reaching implications, so there'll be further opportunities to discuss the issues.


J.J. Emerson said...

Here is Judge Sweet's opinion.

Russell Blackford said...

JJE, thanks - I look forward to reading it.