While the US Supreme Court will soon be weighing in on whether or not genes are patentable
in the Myriad Genetics case, we've also been following a similar case in Australia. There, a bunch of cancer patients took Myriad to court
, arguing that the patent on BRCA1 is invalid (this same gene is part of the US case). Unfortunately, the court has decided that genes are, in fact, patentable
if they've been isolated. This is always the key point of contention with gene patent supporters. They claim that it's the fact that they can separate the gene that makes their work patentable. In some ways this is an odd sort of "sweat of the brow" argument for patents -- and here, the judge is buying the argument completely
. He says that patenting genes in the human body would be a problem... but isolating them magically makes it a different story.
There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.
This still seems ridiculous to me. If others figure out how to get an isolated gene as well, why should that be subject to a patent? Hopefully this is not a preview of the US Supreme Court's upcoming ruling.