The United States has always promoted intellectual property rights, one of our nation’s premier institutions. Over the last couple decades, the U.S. Patent and Trademark Office preserved creativity, innovation, and investment through its court’s rulings. On Thursday, the Supreme Court tackled a major case involving biotechnology, an area uncharted by intellectual property rights. The court unanimously ruled that human genes can’t be patented.
The case was Myriad Genetics v. Association for Molecular Pathology. Made recently famous by Angelina Jolie’s double mastectomy, Myriad Genetics is a molecular diagnostic company that synthetically discovered and isolated BRCA 1 and BRCA 2. These two genes, when found medically defective, increase a female’s chance of developing breast cancer by 80% and ovarian cancer by 50%. Myriad claimed that since the firm reserved the rights to the BRCA genes, it also had the right to be the sole company offering the genetic diagnostic cancer test. The Supreme Court ruling favored synthetic modified genes rather than patenting isolated DNA, which is expected to expand genetic research and lower costs for future genetic tests.
Justice Clarence Thomas, writing for the court, stated that “merely isolating BRCA 1 and BRCA 2 was not worthy of a patent.” On the other hand, “when Myriad and others create a synthetic form of DNA called cDNA, their work does deserve patent protection”. He further went on to compare cDNA to the refinement of gold. “If you think of a human gene as gold still in a gold mine, the cDNA is the gold after it’s been mined and polished.”
The final ruing forced the justices to delve not only into the dynamics of DNA and biotechnology, but also into the future purpose of patents. The role of patents becomes emotionally heated when we try to separate private profit from the benefits to general welfare, and even more heated when human lives can be saved by offering generic drugs or tests at much lower costs. However, we all must recognize that these modern innovations would not be possible without proper incentivizing mechanisms. Patents and intellectual property rights fulfill this role encouraging investment, research, and the resulting breakthroughs.
To understand the importance of patents and property rights, we must examine three niche areas.
1. Patents provide firms a return on their investments. They are the reasons that give scientists, engineers, and researchers the opportunity to raise enough capital and funds for continued innovation. Without a guarantee on profit on an already nerve-wracking investment, hundreds of millions of dollars would be lost for entrepreneurial projects.
2. All patents are government-issued. This is a rare instance in which the public should support intervention in the marketplace. As a result of the government-issued patent, all information related to design and research becomes publicly available information. Oftentimes, the patented blueprint is used to develop spin-off inventions for the public’s use. In an implicit manner, the government is encouraging cooperation between competing firms.
Without property rights, major cases such as that of Coca-Cola would be commonplace, in which Coca-Cola refused to patent its secret recipe. Instead, the company hides their soda recipe safe from public domain, which has remained secret to this day. Likewise, firms would refuse to share any knowledge, and therefore the greatest inventions would be impossible to “spin off” from publicly available data.
3. The majority of patents expire after 20 years. In other words, patents don’t last forever. Eventually, all patented works will be available at the market determined price. Furthermore, “evergreening,” or re-patenting a process or invention after its expiration, has been looked down upon by the U.S., international courts, and foreign countries alike.
The Myriad Genetics court ruling represents the culmination of public opinion. It incorporated statements acknowledging an inventor’s contribution to public welfare as well as the importance of retaining innovation and growth within the United States. As we develop as a technologically advanced society, our courts will increasingly face challenging decisions between welfare and returns on private investment. If we are going to maintain a healthy balance regarding this tradeoff, there must be continued dialogue among educated citizens, our industries’ professionals, and the involved medical patients.