Are All Genes Equal?

Abstract

After years of public debate, the Supreme Court recently invalidated patents on human genes. The Court's opinion did not consider the patent-eligibility of biological products from other sources like bacteria and plants, or other non-genetic biological materials. Yet, given the unitary nature of the patent law, the ruling will have broad implications for the patentability of all biological products, human or non-human, genetic or non-genetic. But do these other biological products raise the same concern as human genes? This paper explores these questions and also seeks to examine their relevance through a survey. The survey indicates that people are more opposed to patents on human genes than to patents on genes from lower species. Likewise, the survey finds that people are more opposed to patents on human genes than to patents on human non-genetic materials. These distinctions have been largely ignored by courts and commentators. But the significance of these issues cannot be overstated. As the dust settles on the debate over the patenting of human genes, new questions about the patent-eligibility of other biological products are springing into life, and these considerations provide a richer context to these discussions.

Keywords: Myriad, patent, gene patent, human gene patent, natural law, natural product, morality, public opinion, survey