Previously posted on The Libertarian Standard:

Those without any sound principles about rights and economics are totally confounded by the issue of gene patents. The author of “The absurdity of patenting genes,” in The Guardian, for example, first observes, “Patents are a sensible idea, because people are more likely to invest in innovation …”. But on the other hand, “patents also act as a barrier to innovation, and gene patents bring these disadvantages into stark relief.” So, patents are sensible, because they stimulate innovation … yet they also hamper innovation. Mmm-hmm.

Libertarians, however, having a better understanding of the nature of property rights, are increasingly recognizing that all patents are unjust (see my The Case Against IP: A Concise Guide). And something about gene patents–having the state grant monopolies on the way our genes are configured–is especially galling. Thank goodness this is being fought by the heroic David Koepsell, who is producing the anti-gene patent documentary Who Owns You? (see also Koepsell – Quinn “Debate” on Gene Patents; David Koepsell: Another Austrian-Influenced IP Opponent). And it’s also good that a federal trial court recently ruled against gene patents, in Association for Molecular Pathology and ACLU v. USPTO and Myriad (see Federal Court Invalidates Breast Cancer Gene Patent, Ronald Baily, Reason‘s Hit & Run; Court: Essentially All Gene Patents Are Invalid, Patently-O).

To obtain a patent, the applicant has to satisfy several criteria: it has to be for a novel (new), non-obvious, and useful invention. But what counts as an “invention” is defined in Sec. 101 of the Patent Act to be “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”. This is called “statutory subject matter”. A new book or song may be innovative, but it is not a useful process or machine, for example, so is not patentable because it is not statutory subject matter. US courts have long held that although this section is construed broadly, “the laws of nature, physical phenomena and abstract ideas” are not patentable subject matter. In the case, Myriad had patent claims directed to an isolated DNA molecule possessing a naturally-occurring nucleotide sequence that translates into the BRCA1 protein. The federal court determined that the gene patents at issue were invalid because the naturally-occurring DNA sequence was just a product of nature, and the “isolated” form of it was not “markedly different” from the native DNA. Thus, the patent claims were directed to a product of nature, and invalid.

Unsurprisingly, some patent attorneys are up in arms about this decision. Patent lawyer Gene Quinn, in Hakuna Matada, the ACLU Gene Patent Victory Will Be Short Lived, condemns the decision, and predicts it will be reversed upon appeal at the Court of Appeals for the Federal Circuit. He may be right. Or maybe it will make it to the Supreme Court. It is hard to predict what the courts will do, in part because of the non-objective, vague, artificial legislative standards that the courts strain in vain to construe objectively. Read Quinn’s belabored and hapless attempt to argue in law and on policy grounds why gene patents such as this should be allowed (more on Quinn). They argue that even if the native DNA is not patentable, the “isolated” DNA should be. As Koepsell points out in the comments, by this reasoning, Joseph Priestley, who “isolated” O2 from air in 1774, should have received a patent on the “isolated O2? molecule. What this means is that even though oxygen is widely present in air, if Priestley is the first to find a way to isolate O2 from air, he gets a patent on the process and also the resulting “isolated” O2 molecules. So if another scientist developes another way to way to isolate and purify oxygen, and he wants to make this O2 and sell it in tanks, Priestley can stop him. Only Priestley has the state’s permission to sell oxygen molecules! Even someone who found a naturaly-occurring vein of pure oxygen trapped underground could not sell it. No–that violates Priestley’s “property rights.”

Koepsell even gets the hapless Quinn to admit that Priestley should have gotten a patent on O2 molecules:

You are right. There is no clearer product of nature than an element on the periodic table [namely, O2 — SK]. … What you are missing, ignoring or refusing to accept is that what is patented is not something that in its current state exists. There needs to be human activity to create what you so correctly point out is an element on the periodic table. So clearly the process that Priestley used [to isolate O2 –SK] would be patentable, and the resulting composition [isolated O2 molecules –SK] that in and of itself did not exist on its own and would not have existed on its own without human interaction is patentable“).

As Koepsell notes in reply, “I think that your unwavering support for the patent-eligibility of something like Oxygen explains why most people are repulsed by gene patents.”

Koepsell’s crafty maneuvering the patent socialists into a corner reminds a bit of the dancing-on-the-head-of-a-pin type reasoning and argumentation in the oral arguments at the Supreme Court in the Bilski case, discussed in Supreme Skepticism Toward Method Patents, where the Justices got Bilski’s lawyer to admit that, by his argument in favor of the patentability of software and business-method patents, all sorts of absurd patents would have to be granted, such as estate plans, tax avoidance techniques, a method for resisting a corporate takeover, a way of training horses, and so on.

I don’t know if Myriad will be upheld on appeal, but my fingers are crossed.