Final Words from the Sidelines as Courtroom Arguments Begin in Gene Patent Litigation
Yesterday, on the eve of summary judgment arguments in the Myriad case, The Boston Globe editorialized—strongly—against patenting isolated genes. This is an issue in which the Globe has a natural interest, given the concentration of biotech companies in and around Boston. The Globe’s editorialists may or may not be right on the merits, but they are surely too glib.
First, they wrongly blame the Patent Office for what they see as bad policy: “The US patent office assumes that granting one firm the exclusive right to profit off of a gene is the best way to encourage further research.” No, the Patent Office doesn’t “assume” this—it’s in the U.S. Constitution (Art. I, sec. 8, cl. 8), which allows Congress to grant exclusive rights to inventors to promote the progress of science and the useful arts. That is, the Constitution states an economic rationale for patents: the Framers believed that the promise of monopoly returns was the best way to motivate inventors to invent and then to disclose their technology (which you have to do to get a patent). So even if you disagree with this policy, you shouldn’t say that the Patent Office dreamed it up or has any authority to change it.
The Globe also dismisses the specific economic argument in favor of gene patents: “Yet even without gene patents, it’s hard to imagine that companies would not invest in the basic research that leads them to tests and treatments that can be patented – and become highly profitable – for devastating diseases.” In fact, it’s very easy to imagine that companies would not invest in basic research without the lure of a patent monopoly. That’s an alternative universe we haven’t explored. The Globe might be right, but the evidence is inconclusive. Supporters of the status quo argue that, with an enormously productive U.S. genetics industry, doing away with gene patents is just too big a risk to take—fixing what ain’t broke, killing the goose that lays the golden eggs, and all that.
Although the editorial doesn’t use the term, the Globe argues—like the ACLU—that gene patents violate the patent law’s prohibition on patenting products of nature. For more than twenty years, patent lawyers have fended off this objection by pointing out that “isolated” genes, removed from their natural environment, are structurally and chemically different from their natural precursors. Taken literally, this is true. But the ACLU seeks to shift the focus from structure and chemistry to function and information—and on those dimensions, isolated genes are valuable precisely because they are indistinguishable from the naturally occurring versions. It is a still a longshot that a court would buy this argument, but it is now squarely before the Myriad trial judge today, so we should know more soon.
