The Supreme Court heard arguments Monday in a case that could decide whether it’s possible to patent specific human genes that have been "snipped" out of our DNA and isolated in the laboratory. If the justices rule that Myriad Genetics can patent two human genes thought to be responsible for breast and ovarian cancer, we could be headed down a slippery genetic slope. A single corporation could own an essential part of what makes us human — our genes — and be able to use its patent monopoly to block other innovators from conducting research on specific fragments of our DNA.
According SCOTUS Blog’s Amy Howe, the Justices appear to be leaning away from the position that specific human genes can be patented. One analogy the Court used was, as SCOTUS Blog’s Lyle Denniston writes, "the leaf or sap of an Amazonian plant that has curative potentia l for human disease." Another analogy was the wooden baseball bat that has been shaped out of a tree limb. The plant growing in the Amazon can’t be patented by researchers, just as the tree growing in the forest can’t be patented by researchers. However, what can be patented is the process for extracting the sap from the plant or the actual product — the baseball bat or medicine — that is made from nature.
But here’s where things get interesting: the Supreme Court, again according to Howe’s analysis, appears to have left open the door for corporations to patent complementary DNA (cDNA) — synthetic DNA molecules that function the same as human DNA. (Justice Kennedy referred to these as "economy-class genes.") Using the analogies above, it would be like figuring out how to create a synthetic Amazonian plant or a synthetic Louisville Slugger tree in the laboratory — an impressive feat of innovation worthy of a patent.
After all, if Myriad Genetics can patent the genes thought to be responsible for breast cancer and ovarian cancer, couldn’t other companies patent synthetic genes responsible for things like superior athletic and physical performance? Since 1982, the U.S. Patent and Trademark Office (USPTO) has been handing out patents for human genes, which is how Myriad Genetics acquired its patents. What’s to stop the USPTO from handing out patents for synthetic genes as well?
Imagine a future where Nike peddles designer synthetic genes for, say, “superior cardiovascular performance” alongside its running and cycling gear, or Adidas sells designer genes for “tallness” alongside its new line of basketball shoes. It likely wouldn’t stop there. When you think about the thousands of genetic markers that help to distinguish us from everyone else, it’s easy to see how the rise of synthetic designer genes would inevitably lead to the first “designer baby.” Parents in the future might not be able to resist a guarantee that their baby will have the right genes for “beauty,” “brains,” and “longevity” — as well as even more specific characteristics.
Of course, there are a few caveats about designer synthetic genes. For one thing, it’s still extraordinarily difficult to determine which genes are actually responsible for specific traits and characteristics. You might sign up for one synthetic gene and get entirely different results than you expected. And, according to Myriad Genetics, it’s also extraordinarily expensive to create the genetic mapping process for extracting copies of genes found within the human body and isolating them within a laboratory environment. As the Supreme Court appears to realize, you don’t engage in this activity unless there’s a world of profit out there for the taking, which is what a patent monopoly on human genes would give you.
It’s easy to see where all of this is headed in the future. The arrival of designer synthetic genes patented and trademarked by corporations would be one of the highest marks of what it means to have a unique personal brand. Instead of measuring your personal brand by “followers on Twitter” or “views on YouTube,” you’d measure it by which companies gave you your genes. The ultimate for corporations would be a set of synthetic genes that you would want to pass down to your children. Now that the Supreme Court has shown willingness to weigh in on who owns human genes, get ready for the same spirited arguments over our DNA as we’ve had over other forms of intellectual property.
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