Reining in patents
Afederal judge in New York this week invalidated controversial patents on two human genes. At issue were genetic sequences known as BRCA-1 and BRCA-2 that could be used to gauge a woman’s susceptibility to certain types of breast and ovarian cancer. The patents, held by Myriad Genetics, gave the company a virtual monopoly on tests based on those genes. U.S. District Judge Robert W. Sweet ruled that the sequences were products of nature and that Myriad’s work to isolate them did not transform them into new, patentable products. In short, Myriad had, at best, discovered something, not invented it.
The ruling, which is sure to be appealed, is the latest -- and welcome -- rebuke to the expansive reading of patent law promoted by the U.S. Patent and Trademark Office and the Federal Circuit Court of Appeals. Others include Supreme Court decisions that made it easier to challenge patents for “obvious” inventions and that instructed courts not to grant injunctions automatically against patent infringers. The court is also expected to rule soon on a case that could lead to fewer “method” patents, which cover processes used to conduct business (for example, using software to allocate investors’ dollars among mutual funds).
Underlying many of these disputes is a fundamental question about what patents should cover. It’s easy to articulate the principle that patents should apply only to inventions, not discoveries. It’s not so easy to draw that distinction in practice, especially when technology is changing so rapidly. What’s more, any decision to rein in patent protection risks reducing the incentives that lead people to invest in research and development. But it also could lead to more knowledge being shared sooner, leading to further innovation.
Gene patents put this trade-off in sharp relief. Medical science is moving aggressively toward individualized therapies that match drugs to people with specific genetic predispositions, and understanding the relationship between genes and disease is vital to that effort. But it’s not clear whether gene patents promote the research that’s advancing this science, or whether they’re simply giving companies such as Myriad the ability to charge a premium for their tests.
The Constitution gives Congress the power to grant patents for the sake of scientific progress. There’s a balancing test inherent in that power; having tipped dramatically in favor of patent holders in previous decades, the scales are now being reset by the courts. It’s not the best way to rewrite public policy, but with Congress unable to pass a patent reform bill, it will have to do.
