SCOTUS Avoids Dystopian Nightmare and Says Your Genes Belong to You


This morning, the Supreme Court unanimously (cute!) ruled that human genes are not patentable. The Court heard oral arguments in the case back in April, with the ACLU arguing strongly against Myriad Genetics’s right to patent two genes that put women at a greater risk of developing breast or ovarian cancer—BRCA1 and BRCA2. (You may remember BRCA1 and BRCA2 from the time that Angelina Jolie underwent genetic testing before deciding to have a preventive double mastectomy.) Myriad countered that they really needed the patents because they were super profitable and Myriad employees had come to rely on using thousand-dollar bills as handkerchiefs. Plus, they weren’t done building their really cool fort out of solid gold bullion! The justices dramatically rolled their collective eyeballs in Myriad’s direction.

This decision is exciting. Here’s why: because the alternative sounds like some next-level Philip K. Dick shit! You generally can’t patent something that already exists in nature. You can only patent stuff that you actually invent. You can’t patent kidneys, or your gross toe, or gold, or little baby doggies. The ACLU argued that genes are no different—they’re a part of nature, swirling around in our bodies, giving us curly hair, or green eyes, or Alzheimer’s, or cancer. (Genes are dicks sometimes.) Can you imagine if companies were given the continued right to patent parts of our bodies? That’s creepier than Daryl Hannah in Blade Runner.

Beyond my own paranoid science fiction fever dreams, there are real practical problems involved in gene patenting, too. Myriad’s patents of BRCA1 and BRCA2 allowed them to retain exclusive rights over the genes, and blocked other scientists from using the genes in their own independent research. The patents also gave Myriad a monopoly over the test that determined whether a patient was a carrier of BRCA1 and BRCA2. As a result, they were able to charge more than $3,000 for the test. It’s okay, poor person! I’m sure you’re fine!

The financial aspect is really the crux of the pro-gene patent argument—that scientists would no longer devote themselves to innovation without a substantial financial incentive. I mean, I guess? Is there really a scientist out there who’s all, “I had a shot at curing cancer, but there was no chance of making a crafillion bucks off that, so I quit science and now I play professional basketball”? Besides, a lot of biotechnology companies actually rely on academic research and university labs for new innovations and discoveries. Often, universities patent their own research and license it to private companies, who then profit substantially from the invention. So in this scenario, everyone’s profiting from innovation…except the actual innovators. In Myriad’s case, they were not the only company or group of researchers who contributed to the isolation of the BRCA1 and BRCA2 genes. Not only that, but $5,000,000 federal dollars helped fund the discovery and identification of these genes.

The Court sided decisively with the ACLU on this one. The justices didn’t buy Myriad’s argument that the process of removing the gene from the human body and isolating it counted as an “invention.” Justice Clarence Thomas, speaking for the majority, slithered up to the microphone and softly hissed, “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.” His eyes flickered darkly, and he then disappeared into a cloud of fiery red smoke.

Ultimately, this decision is a big win not just for women at risk of being carriers of BRCA1 and BRCA2, but anyone who suffers from a genetic ailment. Many human genes are already patented, including some that are associated with Alzheimer’s disease. This decision will affect those patents, too, ensuring that more scientists and researchers will have access to the genes. This means more smart people conducting independent research on life-shattering diseases without fear of being sued. Get it, science.

Meagan Hatcher-Mays is a recent graduate of Washington University Law School in Saint Louis. She does a significant amount of yelling on Twitter.

Image via J Main/Shutterstock.

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