Ars Technica asks, “Will the Supreme Court end human gene patents after three decades?“

I think that it likely that they role back patent protections.

These days, they only seem to take patent cases when the United States Court of Customs and Patent Appeals goes too far with patents.  (Which it does with mind-numbing regularity):

Since the 1980s, patent lawyers have been claiming pieces of humanity’s genetic code. The United States Patent and Trademark Office has granted thousands of gene patents. The Federal Circuit, the court that hears all patent appeals, has consistently ruled such patents are legal.

But the judicial winds have been shifting. The Supreme Court has never ruled on the legality of gene patents. And recently, the Supreme Court has grown increasingly skeptical of the Federal Circuit’s patent-friendly jurisprudence.

Meanwhile, a growing number of researchers, health care providers, and public interest groups have raised concerns about the harms of gene patents. The American Civil Liberties Union estimates that more than 40 percent of genes are now patented. Those patents have created “patent thickets” that make it difficult for scientists to do genetic research and commercialize their results. Monopolies on genetic testing have raised prices and reduced patient options.

On Monday, the high court will hear arguments about whether to invalidate a Utah company’s patents on two genes associated with breast cancer. But the legal challenge, spearheaded by the American Civil Liberties Union and the Public Patent Foundation, could have much broader implications. A decision could invalidate thousands of patents and free medical researchers and clinicians to practice medicine without interference from the patent system.

It’s very clear that a gene is a discovery, not an invention, but the patent court believes that you can patent a rainy day (I mean this literally: They approved a patent on weather derivatives in Bilski v. Kappos, which was later overturned by the Supreme Court. This court also allowed for patenting of tax deductions)