I originally wrote about this in May, and my position then is what it is now, that you patent inventions, not discoveries, and that the counter argument, “discovering is hard work,” is a load of crap.

The case law is clear that, “a product of nature is unpatentable unless it is sufficiently different to become a patentable ‘composition of matter.'”

In any case, the litigation, put forward by a number of civil liberties and scientific organizations, is now making arguments before the judge:

Federal court hearings continued Tuesday on a lawsuit that could transform biotechnology in the United States by eliminating gene patents.

The case hinges around the claims of Utah-based Myriad Genetics on BRCA1 and BRCA2, a pair of genes closely linked to breast and ovarian cancer. Myriad “owns” the genes, and says its patents make it possible to profit on diagnostic tests. The company argues that if you remove the patents, the tests — indeed, commercial biotechnology as we know it — will vanish.

Myriad is, from the perspective of an engineer, not a patent attorney, dammit,^* full of crap.

Their tests for the gene are still protected, it’s just that alternative, and better test methods for the gene that they discovered will be able to compete.

Fundamentally, IP law is about the public good, as it says in the Constitution, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” [where “discoveries” means “invention”, hence the reference to “inventors”, it gets complex],

My guess is that if Myriad had been a bit less hard assed about their patents, they have absolutely refused to license to anyone for any purpose, this case would probably have never come up.

As it stands now, they are literally killing people, and this makes them a thoroughly unsympathetic defendant.

I can’t imagine this not ending up at the Supreme Court though.

^*I LOVE IT when I get to go all Doctor McCoy!!!