This is a pretty promising step, given that 20 percent of our genes have already been patented by various companies (which would mean that even if you had your genome sequenced, you would have to pay these companies fees before looking for mutations in these genes). I glad they’re finally realizing how absurd this is.
In a surprising move, the U.S. Justice Department filed a brief last Friday that declared, for the first time, that the U.S. government does not support the patenting of naturally occurring human genes. This new position is contained in a document filed as part of the ongoing legal challenge to the gene patents on the human breast cancer genes, BRCA1 and BRCA2.
The DOJ brief is actually quite fun to read, as there are some clear pwnages:
Common sense would suggest that a product of nature is not transformed into a human-made invention merely by isolating it. The very term “isolated” suggests only that extraneous matter has been separated from the natural product of interest, not that the product itself has been transformed or altered into something man-made.
The discovery of any number of basic natural phenomena could be recharacterized as the “invention” of an isolated “manufacture” or “composition of matter” under section 101. For example, many highly reactive elements on the periodic table, such as lithium, occur in nature only in chemical compounds (i.e., salts). Not until 1818 was lithium, which has innumerable industrial applications, first isolated in metallic form by Sir Humphry Davy and W.T. Brande. See Krebs, The History and Use of Our Earth’s Chemical Elements: A Reference Guide 48 (2d ed. 2006). That accomplishment marked a significant achievement in chemistry, but it did not entitle Davy and Brande to claim a patent on the third element in the periodic table.
Similarly, Hans Dehmelt won the Nobel Prize in physics in 1989 for being the first to isolate a single electron free of the atom, an accomplishment with useful applications in atomic clocks and other devices. Dehmelt undoubtedly could have patented his process and apparatus for isolating an electron in free space, as well as any method for exploiting the characteristics of electrons thus isolated, assuming the other requirements of Title 35 were satisfied. But Dehmelt plainly did not invent the elemental unit of negative charge in the universe. Nonetheless, on appellants’ theory, Dehmelt could have patented the isolated electron itself (as a “manufacture”) and thereby arrogated to himself the exclusive right to conduct experiments in electron quantum physics for twenty years.