Mister Green(back) Genes

A federal judge has ruled against the entire notion that biotech companies can patent genes, which could put  nasty crimp in the plans of, oh, the entire industry.

Putting a point on things, Judge Sweet, as the New York Times notes, took up the argument of critics who say identifying and isolating a gene is enough to win a patent. That's too clever by half, according to Sweet, and constitutes, "a 'lawyer's trick' that circumvents the prohibition on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result."

If the judge's legal logic holds up, it could imperil thousands of patents. But this case is only the beginning of the legal wrangling. "Despite the complete victory for the plaintiffs, we have to keep in mind that this is just the first step on a long road for this particular piece of litigation, and for the future of gene patents more broadly," wrote biotech attorney Dan Vorhaus on the blog Genomics Law Report.

The suit was brought by the American Civil Liberties Union and the Public Patent Foundation. "The court correctly saw that companies should not be able to own the rights to a piece of the human genome," Daniel B. Ravicher, a lawyer with the Public Patent Foundation, said in a statement. "No one invented genes. Inventions are specific tests or drugs, which can be patented, but genes are not inventions."

In a statement, Myriad said it would appeal the ruling and is confident it will be reversed. The company also said it didn't expect the ruling to hurt its business because many patents on the tests are unaffected.

The bottom line is if you can patent a gene, you can then become the sole proprietor of tests involving that gene, which means you have an effective monopoly on anything that affects that gene: tests, therapies, new drugs, the whole nine.  Since you have a monopoly, you can charge whatever you want.  Everybody else has to play along.

And you wonder why health costs are rising so quickly.  Monopolies aren't exactly good for consumer prices, you know.  Maybe instead biotech companies can compete to see who can make the most effective test or therapy or drug to deal with that gene.

Wouldn't that be nice.