On Monday, March 29, 2010, the U.S. District Court, Southern District of New York, held that patents on a set of human genes linked to breast cancer are invalid. Patents are meant for innovations, granting the inventor/creator the exclusive right to develop and produce the innovation. Exclusivity rewards the inventor, yet too much exclusivity stifles competition and advancement.
While no one is undermining the difficulty to identify and analyze genes, the ramifications of patenting such processes seem dangerous. First of all, genes should not be patentable subject matter, as they are not a new process or composition of matter. Genes already exist in all species, and are merely discoverable by the scientist. This is playfully analogous to Christopher Columbus (as the patent holder), claiming the New World in the name of Spain (a patent for exclusivity), when the land itself already existed and was inhabited by others (genes, waiting to be found). Discovering and analyzing genes, as with discovering America, is quite an accomplishment, but does it itself encourage invention/exploration and warrant exclusivity? Patents are not meant for discovering hard-to-find things, but for rewarding invention and creation – “to promote progress in science and the useful arts.”
The Court also invalidated the method process of analyzing the genes, because the process failed the Bilski test requiring the process to be connected to a particular machine or device or that the process transform an article or piece of matter into something else. Bilski is currently before the Supreme Court, and its resolution will clear up some of these issues.
By invalidating the patents, the Court has encouraged competition and innovation, and many more research facilities will be able conduct similar genetic research, hopefully leading to advancements in breast cancer treatments, which treatments may in and of themselves be patentable.
