U.S. top court bars patents on human genes unless synthetic
http://www.reuters.com/article/2013/06/13/us-usa-court-genes-idUSBRE95C0PW20130613
It has always stuck in my craw that the simple act of sequencing a gene could possibly be considered ‘novel, useful and non-obvious’, yet we have (had) thousands of patents on them. It is exactly like finding a blue jay and then getting a patent on the species. You have done nothing but bend over, yet you are to be awarded with 20 years of monopoly for having done so? No wonder there was such a gold rush! No different than the inane rush to register domain names, all the squatters were hoping for was a winning lotto ticket, they have done nothing to contribute to society, but at least in that case we aren’t talking about something everyone has.
I am glad that SCOTUS allowed synthetic genes to be/remain patented. There will, of course, be all sorts of cases where someone makes a trivial change to a gene (one totally ‘silent’ in expression) to produce an identical product, but the courts will eventually sort that out. Personally I don’t envy the people trying to come up with a rational solution. Most genes are useless by themselves, it is the expression of the gene that leads to something useful. If the expressed product is identical (something actually quite trivial to do) should that be infringement? Though protein/enzyme design is still in its infancy (a long one; I started my research into this area in the very early ’90s and as far as I can tell, nothing has changed since then), in principle you can nave a near infinite number of distinct scaffolds to hold up the same ‘active site’ on the protein/enzyme. What should be protected? The primary sequence? The active site? The primary sequence is (in principle and often in actuality) trivial to tweak and cause no measurable decrease in behavior, yet by the same token, small changes can result in dramatically different behavior with a chance of dramatically enhanced activity. Since this is (at least today) considered very ‘hard’ to do, that sort of modification should be rewarded with monopoly through patent. It is a complicated area and I expected SCOTUS to return one of their trademarked idiotic split decisions (or worse, one of their trademarked idiot unanimous decisions) and vastly muddy the waters, yet, at least in my mind (though I must admit I haven’t read the actual legal document) they have dramatically clarified things, in many respects exactly how I would have done it. I guess in any real world expectations must at least occasionally be thwarted, fortunately this time it was in a good way.
