What I Did On My Summer Vacation AKA Thinking About Patents

I know how to have fun, right?  Here’s a picture from my hotel room taken moments ago:

But I’ve been thinking about this:

Photo source
Today the Supreme Court ruled on Association for Molecular Pathology v. Myriad Genetics.  At issue is whether Myriad’s patents on BRCA 1/2 genes are legal.
To put it into context, every one of us carries this gene.  Myriad identified a mutation in the gene, present in a small percentage of people.  When this inherited mutation is present, it increases a person’s risk of developing certain types of cancer, most notable breast and ovarian, but also other cancers such as pancreatic, prostate, and melanoma.  Besides the ick factor of having our genes subject to patent, Myriad’s patent has kept other companies from testing for the mutation, and lack of competition has kept the price for the test high.
Full disclosure:  Because of my age at diagnosis, I was eligible for the BRCA test and genetic counseling. Insurance covered it and I do not have the mutations.
The Supreme’s ruling was unanimous.  Justice Thomas wrote:

[W]e hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated…

So that settles it, right?

Here’s a headline from USA Today after the Supreme Court Ruling. Myriad Genetics Shares Soar on Court Decision.

Why?

I think it’s because of the second part of that sentence written by Thomas, after my …  Here’s the entire sentence.

For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.

Complementary DNA, or cDNA, is synthetic.  In my very rudimentary understanding, cDNA takes actual DNA and removes parts, allowing for the mutation testing.  So while the genes can’t be patented, the processes of testing for the mutation can be.

I have a lot of questions about this ruling, research, and patents in general.
  • Research is expensive and risky.  Shouldn’t companies have the opportunity to protect their investment with patents?
  • Would a person or a company invest in research if there weren’t the possibility of a payoff (patent protection) in the end?
  • Or does the ubiquity of patents keep the smaller companies out of the industry entirely?
  • How big of a deal is this ruling, really?
  • I’ve heard from many that the real barrier to entry for research is the cost of excessive regulation.  Maybe this patent conversation can’t be had in a vacuum.  That is the subject for another post, when I don’t have the ocean to stare at.

1 thought on “What I Did On My Summer Vacation AKA Thinking About Patents”

  1. Now that’s my kind of vacation! If the objective of an effective economic design is to alleviate scarcity and promote the highest ongoing general std of living possible, then which design is more likely to do so: a) one that grants producers legal monopolies over type and quantity of goods available for for consumers, b) one that empowers consumers to continually reward producers for goods that improve upon what is currently available?

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