From Creator To Object: The Supreme Court To Consider Patent Claim To Human Genes

The U.S. Supreme Court
The U.S. Supreme Court
DNA_orbit_animated_static_thumbBelow is my column this week in USA Today (the print version will run Wednesday while the web-version ran today). We have been following the increasingly draconian copyright and trademark laws used against citizens and companies — laws secured by an army of lobbyists, lawyers, and an obedient Congress and White House. The impetus of the piece is the Myriad case to be heard on Monday, where the Supreme Court will have to decide whether a company can patent human genes. The company argues that it took considerable research to isolate the genes associated with breast cancer and that patent protection gives companies like Myriad to do such extensive research and development. For many others, the patent claim represents a virtual franchising of the human body – giving companies claim to something that exists in nature. It also gives these companies a critical gatekeeper control on research into key components of cancer, Alzheimer’s disease, asthma, and other health threats. While this column deals with statutory expansions of private property claims over genes, common phrases and images, there is an equal expansion occurring in the common law, including the “misappropriation of name or likeness.” Perhaps the most infamous such authority can be found in the case of White v. Samsung. In this case, Vanna White sued Samsung over a commercial that showed a robot with a blonde wig turning cards in a game show. It was an obvious parody but the federal court found the image of a blonde who did nothing but smile and turn large cards belongs exclusively to White.

This column is meant to show that there is a broader problem in the rush to claim common material, images, and terms. Perhaps it was inevitable that with the ever expanding patent, copyright, and trademark laws, mankind itself would become a form of property: the ultimate evolution from creator to object.

This week, the Supreme Court will consider whether a company can claim ownership of two human genes under a patent. Myriad Genetics currently holds a patent to two genes associated with breast cancer. The case challenges the long-held position of Congress that people can patent “anything under the sun that is made by man.” The case raises significant moral and legal issues as companies claim parts of the human genome as their property. Currently twenty percent of your genes are now claimed as private property. This case is part of an overall trend of claims over virtually every basic term, symbol, and now human genes under the sun. Human existence is being privatized to the point that a creative existence seems to require the consent of a new class of property overloads.

While Myriad Genetics argues that is only seeking to reap the rewards of its extensive research and development, others view its claim as a virtual franchising of the human body. The Myriad case raises fundamental questions on the meaning of property, including the treatment of the human genome as akin to a Hoover vacuum. Jonas Salk, the developer of the polio vaccine, was once asked if he owned the patent on this valuable vaccine. Salk famously replied in disbelief by asking “Could you patent the sun?” He said such things must belong “to the people.”

Today, most things under the sun (including images of the sun) seem claimed by patent, copyright, or trademark holders. Apple Computers even sued a grocery chain for using an apple as its symbol. While God may have created the apple, he failed to trademark it.

It has triggered a type of land rush as everyone grabs objects, expressions, and names like settlers carving up free land. This year, the Prince George’s County Board of Education moved to claim copyright to work created by staff and students that would include everything from a teacher’s lesson plan to a toddler’s finger painting project. Then there is Robert and Diane Maresca of Long Island who claimed “Occupy Wall Street” as a trademark as soon as the protest began. They were not part of the protests, mind you. They just wanted to make money off it and Robert Maresca insisted “if I didn’t buy it and use it, someone else will.”

Other terms from “Linsanity” to “Who Dat?” to the word “Yuuup” have been claimed. This often results in fights over the spoils of common terms. Last year, Roy Fox secured a copyright to the term “Harbowl” last year to make money off a Superbowl between the Baltimore Ravens coach John Harbaugh and San Francisco 49ers coach Jim Harbaugh. He was then muscled out by NFL lawyers insisting that no one can use the term “Bowl” but them.

As terms and images are grabbed in this mad rush, the laws have become the very inverse of their intended use. Rather than protecting inventions to encourage and reward creativity, these laws now restrict creative thought and invention with layers copyright, trademark, and patent claims. Interestingly, citizens find themselves traveling through a world where everything they see has a TM or © sign to signify the owner of items and expressions around them. The Susan G. Komen charity fund has repeatedly threatened lawsuits against other charities seeking to raise money with the words “for the cure.”

The Obama Administration has been criticized for yielding to the demands of lobbyists for higher and higher penalties, including criminal penalties, over such infringements. The Administration recently intervened in the Supreme Court to defend the ruinous fine of $222,000 imposed on a young Minnesota mother for sharing 24 songs. The Court refused to review a $675,000 fine against former college student Joel Tenenbaum for downloading and sharing 30 songs.

We have come a long way from men like Salk who viewed most things as properly owned in common by the people. It was only a matter of time that with people claiming everything under the Sun, they would soon direct their interest to people themselves as a type of chattel to be claimed. As the Supreme Court deliberates over the very ownership of our genes, there has never been a national debate over the commoditization of American life. If we do not want to live by the leave of a new property class, we have fight for our rights. Just be careful in how you say it. “Fight for your rights” is trademarked.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

68 thoughts on “From Creator To Object: The Supreme Court To Consider Patent Claim To Human Genes

  1. Because there is the potential for REALLY big money to be made from genetically modified organisms, I predict with high confidence that the court will decide that genes are patentable.

    I think it will have to be up to Congress to distinguish between genetic sequences that are developed (new combinations) and those that are isolated/discovered, allowing only the former to be patentable.

  2. Bron,

    Supreme Court Asks: Can Human Genes Be Patented?
    by Nina Totenberg
    April 15, 2013
    http://www.npr.org/blogs/health/2013/04/15/177035299/supreme-court-asks-can-human-genes-be-patented

    Excerpt:
    ‘Could You Patent The Sun?’

    Until relatively recently, much of the medical profession disdained patents, except as a means to ensure quality. When Dr. Jonas Salk, the inventor of the revolutionary polio vaccine, was asked in 1955 whether he had a patent on the vaccine, he replied, “There is no patent … could you patent the sun?”

    Myriad Genetics, however, contends that the genes it isolated are not like the sun. Mark Capone, president of Myriad Genetics Laboratories, notes that the 20,000 genes in the human body are part of a 6-foot-long molecule that’s “coiled and compacted and stuffed into each cell.” And, he says, “What Myriad was able to do is sort through all those 20,000 genes and find the two that were highly linked to hereditary breast and ovarian cancer.”

    The gene is like “a single grain of sand” hidden in a building the size of the Empire State Building, says Gregory Castanias, Myriad’s lawyer. He will tell the justices that isolating the two genes justifies a patent because “it is the final step in an extraordinarily complicated set of inventive actions that led to the creation of this molecule, which had never been available to the world before.”

    Not so, say those challenging the patent. Human genes are products of nature. They are an essential part of the human body. “All Myriad does is take a part of the body out of the body,” says the challengers’ lawyer, Christopher Hansen of the American Civil Liberties Union. “It is no different than taking a kidney out of the body. Just because you are the [first] person who takes the kidney out of the body doesn’t entitle you to a patent on kidneys.”

    Invention Or Discovery?

    Castanias, however, contends that by locating the gene and isolating it — snipping it out from the rest of the genetic material — Myriad has created a new and patentable thing. He says it’s “no different than allowing a baseball bat or cast iron fence to be patented as a new invention,” even though those items “originated in a tree” or a “rock.” The baseball bat and cast iron fence are still “human inventions” and thus are patent eligible.

    “We do know Myriad did a lot of work,” says New York University law professor Rochelle Dreyfuss, a nationally known patent expert who is not associated with either side in this case. But that’s not enough, she says, because the court still has to answer this question: “Is the thing that’s isolated significantly different from the way that it was when it was in nature?”

    Hansen, representing the patent challengers, contends that Myriad is merely following nature’s instructions about where to snip out the gene.

    “The structure of the gene, the constituent elements of the gene, the significance of the gene … where the gene starts, where the gene ends, all of those are decisions that nature made,” he says. “Myriad just uncovered the fact that nature had made those decisions.”

  3. Elaine:

    I think there is more to this than meets the eye. There is something, we as laymen, do not understand.

    I agree with you that “natural” genetic code should not be patentable but what if I cross a fish with a potato and the result is fish and chips? I should be able to patent that.

    You are suspicious of the Kochs and I am wary of the ACLU (although in the last few years I find myself agreeing with some of their work).

  4. Bron: but what if I cross …

    In patents (for devices) the question of patentability turns on whether what you did would be obvious to an expert versed in the state of the art, and whether what you did is necessary to the novel function you create. In the eyes of others, not yourself. For example, you can’t replace a spring with five coils per inch with another spring that has six coils per inch and claim you have invented a new device; UNLESS you can also show that this replacement produces some significant new change in function, and that would not be obvious to somebody else versed in the state of the art.

    Likewise, you can’t just paint your device red instead of green and claim it is something new. You can’t just change an alloy by 0.1% and claim it is something new, unless you can also show it does something significantly different than the previous alloy (tougher, stronger, smoother, whatever, for shorthand think of it as something new the market would pay for).

    So extending that philosophy to genes, isolating a gene from the human genome is like pulling a spring out of an engine and saying you are patenting it. If you invent a new animal, or hybrid, and in the patent examiner’s expert opinion that would not be obvious to those versed in the state of the art (genetics and hybridization is the “art” in this case) then you have something patentable; which means market protection for 17 years (or whatever it is now).

    Of course, if whatever you did or “invented” was already out there before, that is proof enough it wasn’t original, and was not ‘non-obvious’, it was already done.

    With genes, simply isolating them does not make the gene a novel thing the lab created. The procedures for isolating them or testing for their presence (as opposed to some variation on that gene) might be novel, and that procedure might be patentable, but the gene itself is already out there and those versed in the state of the art (genetics and genetic manipulation) could presumably have isolated it too. Maybe not using the same procedure, but using well known canonical procedures it is possible to isolate and sequence (or create) any given gene in the lab.

  5. Hi, I am Courtnee Lacks, Henrietta’s great-granddaughter. Thank you for bringing up her HeLa cells below. Even though the recent Supreme Court ruling didn’t directly apply to HeLa, our family has followed the case closely and were delighted that the ruling supported an individual’s right to own his or her own microbiological materials.

    If you are interested in learning more about how HeLa has affected the Lacks family, my grandparents have published a short digital memoir, “HeLa Family Stories: Lawrence and Bobbette,” that talks firsthand about their experiences. It is available on Amazon at http://www.amazon.com/HeLa-Family-Stories-Lawrence-ebook/dp/B00COEH2RY,

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