Imagine if you could own your DNA.  Sounds simple enough, doesn’t it?  After all, we’re all born with our own genes and DNA – it’s our own individual blueprint – so why not get to own what is already naturally ours?  Seems like one ought to be able to file for a patent for genes in order to exclude others from making, using, or selling those genes… right?

Slam the brakes.  Earlier this year, the Supreme Court ruled unanimously that human genes are outside the realm of patentability.  See Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 12-398 (2013).  The facts behind this case began when the United States Patent and Trademark Office granted patents to Myriad Genetics, a Salt Lake City company, for isolating two human genes which are responsible for indicating a higher risk of ovarian and breast cancer.  However, remember that the patent system allows inventors to patent their creations, and it is a well-settled rule that one cannot obtain a patent on naturally-occurring things.  Once the case reached the Supreme Court, Justice Thomas noted that Myriad merely discovered and separated the genes, and it did not create them, as is required by U.S. patent law for patent eligibility.  The Supreme Court, recognizing that DNA is a product of nature, ruled that DNA that had been merely isolated would not be eligible for patenting.  However, genetic material created in laboratories would be patentable.

This decision will help doctors and scientists who would not have been able to conduct research on the genes with the patents in place.  It also eases the worries of companies who synthetically create genetic material, because they can still obtain patents from the USPTO as long as the synthetically-created genetic material meets the three other patent standards (novelty, usefulness, and non-obviousness).

So, we just may have to slam the brakes on all that genetic patenting ambition.  But the road ahead looks navigable for now: if you create it, you might be able to patent it.  If you merely discover it, you’re going to have to hold your horses on any patenting ideas.  This ought to spark some creativity in us all, right?

Do you have a question about patenting something you’ve created?  The McHattie Law Firm may be able to help!

(Neeraj Joshi)