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The Supreme Court’s Bad Science on Gene Patents

June 13 (Bloomberg) -- Can you patent genes? In Association for Molecular Pathology v. Myriad Genetics, the U.S. Supreme Court answered this imponderable question with a split decision: You can’t if they are naturally occurring, and you’ve simply discovered the gene; but if you’ve crafted a synthetic gene, you’ve invented it -- and you can keep the patent. As sensible as this compromise sounds, it doesn’t reflect scientific logic. The court is trying to protect big pharma and our economy without offending basic principles of ethics and law. It may succeed in doing neither.

Today’s Solomonic decision is intuitive on the surface. On the one hand, as my 6-year-old daughter explained to me, “if you discover something, that means it was already there. And if it was already there, you couldn’t have invented it.” Patents are reserved for inventions, not naturally occurring phenomena. On the other hand, the synthetic gene -- in this case, a sequence of what is called “complementary DNA” that includes only those elements of the gene sequence that actually encode proteins --has some claim to having been invented, because it is not (exactly) naturally occurring.