The following editorial appeared Friday in the Washington Post:
No, a unanimous Supreme Court ruled Thursday, genes cannot be patented, no matter how much effort a company expends in finding them.
It is the right call but can't be the last word. Congress must explore how to encourage useful genetic research while allowing the fruits of that inquiry to be used as freely as possible.
At issue was a series of patents that the biotechnology firm Myriad Genetics obtained on two genes, BRCA1 and BRCA2. Certain mutations of these genes are associated with a much higher risk of breast and ovarian cancer.
The company sorted through the massive strand of genetic code to find them and determine what they look like normally. This knowledge allows doctors and medical researchers, after fairly simple genetic analysis, to determine whether a person's genes look different in ways that indicate that higher risk of illness.
With the patents in place, only Myriad or those to whom it gave permission were allowed to isolate and examine the genes.
The problem with that, according to the court, is that "Myriad did not create anything."
"Groundbreaking, innovative, or even brilliant discovery does not by itself" warrant patent exclusivity, Justice Clarence Thomas wrote for the court, if the resulting discovery is a naturally occurring thing.
But policymakers must also keep in mind the "extensive effort," as Thomas put it, of companies such as Myriad.
Awarding patents is one way government can encourage such effort. But Congress should examine whether government-funded research and market opportunities are enough to motivate genetic research, or whether it should offer more narrowly drawn patents, prize money or other new incentives for companies to continue sorting through the genome.