Is the DNA patent dead?

March 30, 2010: 4:11 PM ET

Biotech companies argue that a judge's ruling against DNA patents will slow their life-saving work. Instead they should move quickly to come up with a better, more collaborative way to protect and share findings. Time to get creative.

By David Ewing Duncan, contributor

Who owns our DNA -- those long sequences of As, Gs, Ts, and Cs that make us who we are and contain hidden clues to diseases that might one day afflict us? Until yesterday, companies, universities, and individuals could make a claim, patenting DNA sequences isolated from the human body, though not the actual genes inside of you and me.

The whole framework around grabbing control revolved around creative lawyering, with companies over the last few years figuring out ways to adopt intellectual property laws better suited for, say, toasters -- or man-made drugs -- than to biological structures that seem to be more like leaves or sunshine.

Now it's time for that innovative spirit to move away from the general counsel's office and back to the lab.

The shift came yesterday in a case that has pitted the American Civil Liberties Union and several scientific and patient advocacy groups against Myriad Genetics (MYGN) -- which owns patents on two genes that can contain mutations associated with breast cancer. Judge Robert Sweet, of the U.S. District Court of the Southern District of New York, invalidated these patents, saying they were "improperly granted" because they involve a "law of nature."

"Many, however, including scientists in the fields of molecular biology and genomics, have considered this practice a 'lawyer's trick' that circumvents the prohibitions on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result," Sweet wrote in a 152-page decision.


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