Contra yesterday’s ruling, human genes should be patentable. No, seriously, is there any reason why God can’t apply for a patent on the human genome, or parts thereof? Shouldn’t Satan be allowed to patent mutations that cause psychosis? C’mon, Justices, allow these guys to get their period of exclusivity – twenty years from the date of patent application. There are issues regarding the length of time that the genetic code has been in the public domain, and how this should interact with international patent applications, but really, no reason to not allow God, Mother Nature, Buddha, or the deity of your choice to apply for a patent on human genes. Sorry, SCOTUS, but the human genome is potentially patentable – just not by a human.
A very quick patent law overview: you can patent devices or new compositions (e.g. a widget or a drug) or methods (e.g. “a method of isolating genes”). You cannot patent ideas (e.g. “e=mc^2”) or scientific progress (e.g. quantum mechanics). Only the inventor(s) can apply for a patent; mandatory assignment clauses in an employment contract might require the inventor(s) to hand over the rights to the invention to his employer, but the inventor(s) is the only rightful applicant.
I just don’t know how you would patent part of the genome. Neither does any Justice on the Supreme Court. SCOTUSblog called this a “patent truism” because Myriad Genetics did not create anything; it discovered something.
Some commentators have suggested that the underlying public policy is to make health care more available to people (not subject to the high prices caused by patent exclusivity). I hope this is not the case: the motivation for investing in and creating a new drug or medical device is the profit that comes from patent exclusivity. Myriad’s problem is that it didn’t create anything new; it only discovered a natural process. There are certainly public policy issues surrounding the protection of scientific advances, but the solution is to not make everything unpatenable.