Jibber Jabber About Patenting DNA

Lyle Denniston reports here on the Supreme Court’s opinion in Association for Molecular Pathology v. Myriad Genetics, Inc.  The opinion’s text is available here.

I am not particularly well-versed in patent law, but the outcome seems agreeable to me.  Most importantly, it overrides the decision by Judge Sanders in Boston Legal, Season Three, Episode 21 (Tea and Sympathy) who ruled that a doctor could obtain a patent on blood that could cure itself of HIV.  The script for the episode can be found here.  Judge Sanders’ opinion and ruling was:

Truth be told, I couldn’t understand what the hell anybody was talking about in this case. It was clear to me that Mr. Griffin, as I said, was an ass. The idea of one person getting a patent on somebody else’s DNA—!  Well, you don’t have to be a senile old goat to be befuddled by that!  But the most confusing thing of all is the idea that AIDS  maybe can be cured, and progress is repeatedly being stalled by a  bunch of drug companies and scientists going for patents and  fighting over profits. I don’t doubt the sincerity of the doctor.  Legally, I suppose, he does have a patent, but I keep coming back to—this is Simon Griffin’s blood. And he’s an ass. I rule in favor of the doctor.  Adjourned.

Notably, Sanders played the “ass card,” meaning that this case was of low precedential value due to its easy distinguishability (not to mention the fact that it was a trial-level ruling).  It is also interesting to note that the Boston Legal case illustrates a scenario where getting a patent is not necessarily a profit-driven endeavor.  The doctor in the episode sought to patent his patient’s blood in light of the patient’s plan to sell his blood to the highest bidder.  The doctor’s main aim in patenting the blood was to ensure that nobody else could get a patent on the blood, and thereby ensure that a cheap, generally available drug could be made available.

Admittedly, the Supreme Court’s opinion will have a favorable impact on prices for some genetically derived cures.  And it would be naïve to think that most people who got ahold of patents on miraculous things would pursue the greater good rather than private profit.  But it is important to also keep in mind that the patent route may not necessarily always be the path of the villain.