Gene Patents and Justice: Better Late than Never

With the Supreme Court’s recent ruling on gene patents, I was reminded of work I did in the first year of my doctoral program. I examined gene patents using Robert Nozick’s understanding of property.  In full disclosure let me be clear that I have always been opposed to gene patents because I do not believe they qualify for patents because there is no novelty. The processes and technology used to isolate and sequence DNA, sure, but the actual sequence itself, I don’t think so.

But I digress. In terms of using a justice theorist to examine a contemporary issue, I chose to use Nozick and gene patents because I thought there was an interesting connection. The central question of justice in that kind of perspective is the ownership of genes. Assuming that genes were previously unowned, the question shifts to whether society is worse off as a result of this ownership. While it is possible to answer no, because the patent on the BRCA1 and 2 alleles allowed for tests to be develop to determine whether individuals had these particular variants, I would argue that ultimately the answer has to be that society is worse off through the ownership of genes. It may allow a company to pursue research, but it makes it much more difficult for others to pursue similar work. Anyone wanting to do anything in terms of the study of those sequences had to pay for the rights to do so, slowing research and increasing costs to consumers. In fact, a rival company has stated they can now offer BRCA 1 and 2 tests at a third of the cost.

The other argument that can be made is that genes were not previously unowned. It doesn’t really make sense to think of individual ownership of genes, but rather I’d argue that our species as a whole owns our genetic legacy and thus the acquisition of gene patents by biotech companies was never just in the first place.

Now ultimately, this ruling is a mixed bag. The patents specifically involved in the case were set to expire in 2016 anyway and the company’s stock shot up because the Supreme Court is still allowing for patents on cDNA (an issue that would take another post to really explore). It should help lower costs for people who want genetic tests, and make it easier for researchers to share work. The downside is that some believe it could present precedent regarding naturally occurring nonhuman products (derived from bacteria, plants, etc.). The actual ruling seems to speak directly to human genes, but I guess time will tell.

And it would also take a whole post (or more) to get into the added opinion of Justice Scalia at the end of the ruling where he writes “I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”

Let’s just say that even though I am fairly happy with the ruling, that scientific literacy would have enabled an even better ruling.

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