Recently a fairly obscure court decision caught my attention. A Federal judge in Manhattan struck down some of a company’s patents on genes linked to breast and ovarian cancers. This decision will no doubt revive the debate as to whether human genes, or any living thing for that matter, should be subject to patent protection.
The guiding precedent in these matters is the 1980 Supreme Court decision in the case of Diamond v. Chakrabarty, wherein the Court ruled 5-4 that engineer Chakrabarty’s patent of a bacterium capable of breaking down crude oil be upheld. The decision was very narrowly structured, however, and the Court emphasized that it is the responsibility of Congress to decide the limitations of patent law as they pertain to living things.
The recent New York decision will be appealed and this is a rare instance in which I agree with the American Civil Liberties Union–it should be upheld. Further, the Court should have no role in determining whether such patents ought to be approved, only whether or not they are permitted by law. Congress should do its job and definitively outline what constitutes “patentable matter” under the law.
Significantly at issue here is language used by the Patent Office in granting the Chakrabarty patent: “…..the fact that micro-organisms are alive is without legal significance for purposes of patent law” And, as Leon Kass has made clear, the principle used here seems to be that there is nothing in the nature of a being that makes him immune to being patented.
This is erroneous thinking. There is potentially considerably more to a living organism than a “composition of matter”, a term coined by the Court as synonymous with a “manufacture”. Human consciousness cannot be separated from its embodiment. Congress needs to make this clear before we get much farther down this trail.