My recent tour of the pioneering Global Center for Health Innovation in Cleveland, Ohio reminded me how important DNA is to the future of medicine.  The facade of the uniquely designed building has a window pattern that represents DNA coding.  While science is still unlocking the deeply held secrets contained in DNA, the U.S. Supreme Court is weighing to what extent unlocking those secrets is deserving of a patent.  See Assoc. for Molecular Pathology, et al. v. Myriad Genetics, Inc., (Doc.No. 12-398).

The U.S. Constitution states inventors shall have the exclusive right to their “discoveries.”  However, both Congress and the courts have indicated that not all “discoveries” are patentable–only those made by man.  In this regard, the discovery of physical phenomena and laws of nature are not patentable because these are not made by man.  This is sometimes referred to as the product of nature doctrine.  Further, the courts have held that abstract ideas/algorithms are not patentable for a different reason–they do not transform matter or involve machine implementation.  These decisions are all based on the public policy that certain subject matter should not be patented because it will hinder rather than promote the progress of science.

While it is not possible in this short note to address all of the issues touched upon by the Myriad case, one issue deals with to what extent should a “discovery” be patentable.  One of the arguments presented to the Supreme Court was that the discovery of where a gene begins and ends in the long sequence of DNA molecules should be patentable.  To appreciate the discovery aspect, Myriad argued that it is not a trivial matter to identify where a gene responsible for a particular function starts and ends in the long chain of molecules that comprise our DNA.  However, the other side of the argument was that once the gene has been identified, the gene itself is not an invention of man but that of nature.

Unlocking the secrets contained in our DNA will certainly impact the future of medicine.  It will be interesting to see to what extent unlocking those secrets allows for the limited, but extremely valuable, monopolies granted by patents.

(Note: To view the GlobalCenterfor Health Innovation building, please go to http://www.clevelandmedicalmart.com/)