I was going to do a six-worded, pictorial memoir of Spring so far, but there’s just too much going on right now. No, it’s not a shoe sale at Scarpa, or a fox sighting. Although Bob did spot a juvenile fox strolling around the yard yesterday. I’m talking about the big news coming down from the high court this week, about genes.
The US Supreme Court, while thinking that corporations are just like you and me, has decided that our human genes should stay in the public domain. It’s like saying to a patent attorney, “Get lost!” this red hair is mine and I’m keeping it. Pretty much every scientist I know took a collective sigh of relief after this ruling. However in the Association for Molecular Pathology vs Myriad Genetics case, SCOTUS followed up with a coda – “(synthetic) cDNA is not a “product of nature,” so it is patent eligible under §101. cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments.” http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf
Bob explained it to me this way – Let’s say a musician writes a symphony. He/she, and or their company, can patent that song, the sequence of notes that makes the music happen. But the notes themselves cannot be patented; the violins, the drums, the cello and every instrument used to compose that opus cannot be patented, and must stay in the public domain.
The linchpin of this decision, one that may allow for too many loopholes is the phrase that states only when a researcher creates something that is “…not naturally occurring,” then, and only then will they receive a patent. The Court was considering the genetic sequence, in this case, of the BRCA breast cancer gene.
So on one hand the Court is saying that: gene-coded information is what really matters when it occurs “naturally,” and isolating one gene in a sequence is not inventing something new and therefore NOT patentable; but on the other hand, synthetic “cDNA is different from naturally occurring RNA, even though both hold exactly the same genetic information. ” This is less of a distinction, and more of a contradiction.
But what can we do? Will it help to stem the tide of all those newly minted MD/PhDs out there from going abroad to continue their research? Will it make genetic testing more affordable, like the testing Angelina Jolie decided to have? I once had a genetic test done when I was pregnant with the Rocker. I was 35 and considered an old lady by medical standards, so we traveled to a research facility in CT where a very young doctor inserted a very big needle into my extremely big abdomen. Something happened in the lab. They never told us what, and only some of the testing was completed; I didn’t know the sex, and only learned that my baby did not have spina bifida. So, they were all ready to make a repeat appointment for me in the OR – they wanted to do a second amniocentesis.
“…amniocentesis is a procedure used to obtain a small sample of the amniotic fluid that surrounds the fetus to diagnose chromosomal disorders and open neural tube defects (ONTDs) such as spina bifida. There is a small risk of miscarriage associated with amniocentesis which must be balanced with the risk of an abnormality and the patient’s desires.”
I had watched my baby Rocker, on an early ultrasound monitor in 1984, back away from that needle once, and I was not about to do it again. After 3 miscarriages the year before, Bob took one look at me and told the genetic counselor, “Thanks, but no thanks.”
A little history of US Patent Law from 1793 – http://en.wikipedia.org/wiki/History_of_United_States_patent_law