Conservative, liberal justices question idea
WASHINGTON – Supreme Court justices pushed back Monday against the idea of patenting human genes during oral arguments that ranged from baseball bats and chocolate chip cookies to imaginary plants in the Amazon.
Amid a tangle of competing metaphors, conservative and liberal justices alike seemed to recoil at patenting isolated genes taken from the human body. Even if separated through clever technology, justices suggested, the genes in question remain a product of nature rather than an invention of man.
“Here, you’re just snipping, and you don’t have anything new,” Chief Justice John Roberts told Gregory Castanias, an attorney for Myriad Genetics of Salt Lake City. “You have something that is a part of something that existed previous to your intervention.”
Underscoring the court’s ideologically diverse concerns, liberal Justice Elena Kagan joined the conservative Roberts in offering examples that were critical of human-gene patenting. Repeatedly, and skeptically, Kagan asked whether a company might patent a medically useful plant removed from its habitat deep in the Amazon.
The question is telling, because the Supreme Court previously has declared that laws of nature and “natural phenomena” may not be patented.
“Are you saying you could patent the plant because it takes a lot of ingenuity and a lot of effort to find it?” Kagan asked Castanias.
The case considered Monday is the first to confront the Supreme Court directly with the question of whether the human gene may be patented, although more than 4,000 such patents already have been issued.
Genes are segments of DNA. The human body contains about 22,000 genes, which define traits such as eye color and sex and can influence whether an individual develops conditions such as obesity, diabetes and Alzheimer’s disease.
Scientists with Myriad used mapping tools to identify genes associated with mutations that predispose patients to breast and ovarian cancers. Myriad obtained a number of patents relating to the isolated genes, enabling the company to control research and to charge for its genetics-based tests for breast cancer.
The company, backed by others in the multibillion-dollar biotechnology and pharmaceutical industries, argues that the isolated gene can be distinguished from what’s found in the body.
“A baseball bat doesn’t exist until it’s isolated from a tree,” Castanias said Monday. “But that’s still the product of human invention, to decide where to begin the bat and where to end the bat.”
Roberts, though, retorted that “you have to invent” a bat, whereas “you don’t have to invent the particular segment of the (genetic) string. You just have to cut it off.” Justice Sonia Sotomayor made a somewhat similar point, using the example of creating a new chocolate chip cookie. The cookie might be patented, she said, but not the ingredients.
“I can’t imagine getting a patent simply on the basic items of salt, flour and eggs, simply because I’ve created a new use or a new product from those ingredients,” Sotomayor said.