Patently Obvious?

(c) Kathiann M. Kowalski

You don’t own me. I don’t own you.

Today the Supreme Court unanimously struck down patent infringement claims by Myriad Genetics on the location and sequence of certain genes. Those genes, known as BRCA1 and BRCA2, have a statistical correlation with breast and ovarian cancer.

“Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy” the requirements of the patent law. As Justice Clarence Thomas wrote in the Court’s opinion:

“Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. “

The Court’s opinion stressed that it does not apply to alterations of the genetic code. Nor does the opinion cover ways people may invent for working with those genes.

In my view, that’s the right result.

For patients, it can help bring down the costs of genetic screening. That could help people who, like actress Angelina Jolie, want to know more about their chances for certain kinds of hereditary cancers or other diseases.

More broadly, the case can help lower the cost of genetic testing. That could help determine which medications are likely to help patients with a variety of conditions, ranging from cancer to psychiatric disorders and more.

More generally, the Court’s decision leaves the scientific realm of discovery wide open. That encourages scientific exploration and inquiry.

Finally, from a legal and policy perspective, the Court’s decision rightly confines the patent law to inventions, while leaving lots of room for innovation. That’s what the law says, and that’s a good thing.

After all, you don’t own me—and that includes my DNA.