But justices usefully protected investments in biotechnology.


Cases that get to the Supreme Court often involve complex issues over which the justices can reasonably disagree: ObamaCare, "partial birth abortion" and the disputed Bush-Gore election, just to name a few. Affirmative action and gay marriage, expected to be decided later this month, are other examples.

But sometimes the question before the court turns out to be as obvious as it looks to non-lawyers, namely: Can a company patent the naturally occurring genes that make up every human being's DNA?

In a gratifyingly unanimous decision Thursday, all nine justices held that a gene is a product of nature and therefore can't be patented. At the same time, the justices usefully protected investments in biotechnology, ruling that companies can patent a type of synthesized DNA that goes beyond isolating genes.

The ruling will bring welcome competition and innovation to the fast-growing field of personalized medicine, which focuses on therapies tailored to your genetic makeup. Before Thursday, companies had locked up so many genes that one study said 41% of the human genome was off limits to your doctor without the permission of patent holders, because your genes weren't really yours.

The case involved a Utah company that was the first to isolate the BRCA1 and BRCA2 genes, which when mutated are a signal that women have a high risk of breast or ovarian cancer. Myriad Genetics developed a test that is widely used to detect those mutations; it's the one that actress Angela Jolie took before she decided her risk of breast cancer was so high that she chose to have preventive double mastectomy.

The test is unquestionably useful, but at $3,340 it isn't cheap, and Myriad successfully sued other companies to stop them from marketing competing tests. A woman who got the Myriad test but wanted a second opinion could go only to labs that had Myriad's permission to conduct confirmatory tests. Researchers complained that Myriad's patents meant scientists couldn't even experiment with the BRCA1 or BRCA2 genes without the company's OK.

All that began to change as soon as the court handed down its decision. Sandra Park, an attorney for the ACLU, which represented the challengers to Myriad Genetics, said two companies immediately began offering new BRCA1 and BRCA2 testing, and that one, Ambry Genetics, would make the tests available for little more than half the cost of the comparable Myriad test.

Allowing companies to lock up genes and keep prices high by banning competition never made sense. Thanks to the court, millions of people will eventually benefit from more accessible tests, effective treatments and lower costs.


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