Thursday, April 18, 2013

New York Times Editorial Board Asks: Are Human Genes Patentable?

The New York Times Editorial Board asks: Are Human Genes Patentable?.

As we noted in our previous posting at

Patenting Human Genes: Association for Molecular Pathology v. Myriad Genetics: U.S. Supreme Court Oral Argument Indicates Natural Genes Will be Found Unpatentable as a Matter of Composition but Genes Worked by Human Ingenuity May Be Patentable as to Use

the U.S. Supreme Court will undoubtedly find that human genes themselves are not patentable, but that is not the end of it.

The editorial board at the New York Times oversimplifies the legal question involved in the Myriad case, which essentially also involves snippets of DNA called cDNA that have been "worked" by human hand and for which a practical diagnostic use has subsequently been developed.

There is every likelihood, although we do not welcome the prospect at all, that the Justices on the nation's highest court will find such snippets, if "worked" by human hand (i.e. in the lab), to be patentable subject matter as to use.

That is a less troubling prospect for the future, but still one fraught with many dangers if the scope of patentability is set too high by SCOTUS (Supreme Court of the United States). cDNA "creation" is a snap with modern lab kits and the created "entities" are eminently obvious, so that an overbroad definition of the type of modified genes than can be patented could open the doors to a practical "research parcelling" of the human genome, which is certainly not what the doctor ordered.

We argue additionally by the way, that all natural, unmodified human genes serve as "prior art", made by the Almighty, to whatever minor commercial modifications man makes to them in order to modify DNA diagnostically or otherwise make genes medically useful beyond procreation itself.

Patents should be sensibly limited somewhere, and genes, modified or not, would be a good place to start. What the Almighty has created is still massive as compared to man's comparatively less important, in the long term ephemeral inventions and discoveries.

How many profit from finding, discovering, inventing and using God's works?
Well, how about nearly everyone.


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