Justice Scalia, in his concurrence in the Myriad Genetics patent case:
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.
What does this statement mean? The article from which I quoted him (linked above) argues that Scalia here is making a proud statement about his ignorance of the details of molecular biology, and that this scientific illiteracy is a badge of honor among much of society. I’m not so sure, especially given:
Typically, Justice Scalia does not qualify the factual portions of opinions he joins, even where they involve science.
I don’t have any good thoughts on what he has in mind with this qualification, but I find it disturbing. At the same time, as someone who teaches the fundamental concepts at play in this case to students of the liberal arts, I hope none of my students make such a claim when they become Supreme Court Justices.
The Supreme Court ruled today in the case involving Myriad Genetics’ patent on the BRCA1 and BRCA2 genes. Thankfully, they found that DNA sequences are not patentable because they are a product of nature. The Myriad lawyers had argued that the acts of isolation and sequencing make DNA “inventions” rather than natural discoveries, but the court wasn’t buying that argument.
As I’ve noted previously, not only do I find Myriad’s argument wrong in theory, I also find it misleading in practice. They did not bear any of the costs or risks in actually discovering the sequences in the first place. These two genes were identified in an academic lab at the University of Utah. The original paper describing BRCA1 and BRCA2 acknowledges numerous NIH grants as the source of funding.
Most comments I’ve seen on Twitter seem excited or relieved about the ruling, including one by the NIH Director himself, Francis Collins:
Science writer Carl Zimmer linked to a blog post pointing out some factual errors in the ruling:
Comments on the blog post point out not only factual mistakes, but also an inherent contradiction in the reasoning of the ruling, which is more disturbing still. Details matter, and I’m not impressed by the way the law is (mis)interpreting molecular biology.
I’ve been casually following the litigation related to the patent mess surrounding BRCA1 and BRCA2 (see here and here for my previous comments). In short, those are two human genes linked to an increased likelihood of developing breast cancer. Their sequences were patented some years ago by the University of Utah, where they were identified, and exclusively licensed to a private company called Myriad Genetics.
Today, the US Supreme Court ruled on a separate but related case covering a patent for a medical diagnostic test. The Court found the patent invalid because it was not far removed from natural processes, which are not patentable. Experts in biotech patent law suspect that this ruling may set precedent that extends to the BRCA1 case. This would be a welcome development, and a sign of sanity in the fairly insane world that is the US patent system.
First, the setup:
In an opinion issued in March 2010, United States District Judge Robert W. Sweet in Manhattan ruled the patents were invalid. The importance of DNA, he said, was the information content it carried in terms of how proteins should be made. In that aspect, he said, the isolated DNA was not really different from the DNA in the body. The argument that isolating the DNA made it different, he said, was just “a lawyer’s trick.”
But the appellate decision Friday rejected Judge Sweet’s reasoning, saying that since DNA is a chemical, the chemical structure is what matters and that “informational content is irrelevant to that fact.”
I think my mind just exploded. I guess I better revise my notes on DNA for next semester, since a judge just ruled that its informational content is irrelevant to its chemical nature.
via Gene Patent in Cancer Test Upheld by Appeals Panel – NYTimes.com.