HLS Panel Discusses Gene Patents

Panelists at Monday’s discussion about the recent Supreme Court decision against gene patenting agreed that although patenting might provide incentives to aspiring innovators, it often hinders scientific progress, especially when it concerns the DNA sequences that are found within human bodies.

Students and professionals alike gathered in Austin Hall at the Harvard Law School to listen to a panel of six participants, each with different backgrounds and perspectives on the recent case in which the Court ruled that Myriad Genetics, a biotechnology firm in Utah, could not legally patent genes found in human DNA.

The panelists addressed the question posted by moderator and Harvard Law School Dean Martha L. Minow: “What exactly is patentable?”

Tania Simoncelli, a former science advisor to the American Civil Liberties Union who guided the organization’s response to the case, said that patenting genes led to a monopoly over procedures on medicinally significant sections of DNA. This has further stalled development and treatment forp atients with potentially risky genes, she said.

“Separating a gene from naturally occurring DNA is not an active invention, and so should not be patentable,” Simoncelli said, adding that human gene patents, which now cover almost a fourth of the entire human genome, prevent outside development.

Eric S. Lander, founding director ofthe Broad Institute at MIT and Harvard,agreed with Simoncelli, saying that the Court’s decision represented asignificant victory.

“The stuff that exists in the natural world is the fodder for human invention. Discovery of a gene might win you a Nobel Prize, but it isn’t a new invention,” he said.

Harvard Law School professor I. Glenn Cohen also noted this distinction, adding that “genetically engineered bacteria, because they are artificially created, are in fact patentable, whereas the Supreme Court has decided that naturally occurring genes are not.”

Not all panelists agreed that the Court’s decision was entirely positive. Claire Laporte, partner at Foley Hoag, a Boston-based law firm, opposed the Court’s decision because it has made it more difficult for patent lawyers to determine whether a gene sequence or construct was indeed patentable.

“It’s troubling that there is a ‘special sauce’ that you need to have to qualify something as patentable,” Laporte said. “It muddles the legal lines of what is acceptable and what is not.”

Lander added that the decision made the legal issues about patenting genes murkier, but praised the decision for the implications it would have on further research.

“The fundamental result of the decision is a precedent that allows all innovators to use naturally found sequences of DNA and construct something that is truly noteworthy,” Lander said.