from the and-he-should-know dept
Techdirt has been covering the important Myriad Genetics case for a while. Although the CAFC decided that isolated genes could be patented, the Supreme Court has asked the appeals court to review the case in light of the former’s rejection of medical diagnostic patents.
The importance of this case is highlighted by the amicus curiae brief filed by James Watson, co-discoverer with Francis Crick of the structure of DNA, for which they received the Nobel Prize in Physiology or Medicine in 1962 (along with Maurice Wilkins for related work.) Watson makes his views plain from the start:
what the Court misses, I fear, is the fundamentally unique nature of the human gene. Simply put, no other molecule can store the information necessary to create and propagate life the way DNA does. It is a chemical entity, but DNA’s importance flows from its ability to encode and transmit the instructions for creating humans. Life’s instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts.
Watson recalls discussions on the topic during the $3 billion Human Genome Project to sequence human DNA as completely as possible:
Even at the early stages of the project, we were concerned about the issue of patenting human genes. Most, although not all, eminent scientists recognized that human genes should not be monopolized by patents. I believed at the time — and continue to believe — that the issue of patenting human genes went to the very crux of whether the information encoded by human DNA should be freely available to the scientific community. Some twenty years ago, I explained that patenting human genes was lunacy, and I was not a lone voice.
He also points out some concrete problems with gene patents in terms of their impact on assays (tests) that involve multiple genes:
If each of the human genes used in a new multi-gene assay are subject to patents, I fear that useful tests requiring multiple human genes will be unnecessarily delayed, become prohibitively expensive, or, worse yet, never be made available to patients at all. For a new assay using hundreds of human genes, the sea of patents and patent applications would create hundreds, if not thousands, of individual obstacles to developing and commercializing the assay. The best way, in my view, to resolve this problem is to eliminate the unnecessary patenting of human genes.
As this makes clear, if gene patents are permitted, patent thickets are likely to develop, which will delay new tests, and make them more expensive.
Aside from his position as one of the people that discovered the structure of DNA in the first place, Watson has another reason why his views on patenting genes carry some weight. As he relates in a footnote to his submission to the court:
Amusingly, after I gave my first presentation of our DNA structure in June 1953, Leó Szilárd, the Hungarian physicist and inventor of the nuclear chain reaction, asked whether I would patent the structure. That, of course, was out of the question.
Like Tim Berners-Lee with the World Wide Web, Watson declined to patent one of the most important discoveries of all time because he believed it was the right thing to do. Let’s hope the appeals court agrees with him when it hands down its decision on gene patents.