The Supreme Court’s Bad Science on Gene Patents

June 13 (Bloomberg) -- Can you patent genes? In Associationfor Molecular Pathology v. Myriad Genetics, the U.S. SupremeCourt answered this imponderable question with a split decision:You can’t if they are naturally occurring, and you’ve simplydiscovered the gene; but if you’ve crafted a synthetic gene,you’ve invented it -- and you can keep the patent. As sensibleas this compromise sounds, it doesn’t reflect scientific logic.The court is trying to protect big pharma and our economywithout offending basic principles of ethics and law. It maysucceed in doing neither.

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