Designer Genes?

Can we patent life?

Yesterday the Supreme Court handed down a big, bold ruling that companies can patent synthetic DNA but not DNA that occurs in nature. So your own genes are yours, but “synthetic” genes—sets of base-pairs assembled in a lab—are patentable.

The ruling was unanimous, so it’s unlikely to be overturned. It draws on the principle that nature can’t be patented, irrespective of how much work may have been done. Normally, economists discuss trade-offs: weaker intellectual property rights could impede innovation. But there is a long tradition of biomedical research for the public good. When Jonas Salk’s polio virus proved successful, he noted—amid all the public rejoicing—“There is no patent. Could you patent the sun?”

What a difference 50 years makes! It had been estimated that 20 percent of the human genome may have been patented. Those patent-holders were looking forward to revenues or royalties that are now threatened. This could affect research both ways: scientists can now investigate naturally-occurring phenomena without worrying that they’re running into a briar patch of patent liability.

You can’t patent the sun, but you can patent solar cells. There’s still plenty of incentive to continue this work.

Douglas R. Tengdin, CFA

Chief Investment Officer

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