It is generally true that bad people push the law until it breaks, and the folks at Myriad Genetics are a truly nasty bit of work.

Basically, they discovered the genes BRCA1 and BRCA2, which predispose one to breast cancer, and had received a patent on the genes, and offered a not particularly good and very expensive test for the genes, and using their government granted monopoly, they were prohibiting any and all competing tests or research on better tests for these genes.

The judge has now ruled that the genes are a discovery, and not an invention, which makes them non-patentable, except, perhaps in Germany.^*

The VC’s are wringing their hands, because patent protection helps with their pump and dump schemes, but development has been continuing apace on genes that are not covered by these patents:

Some biotechnology investors and executives say that lack of patent protection for DNA could diminish investment and remove incentives to develop tests. That could slow the move toward so-called personalized medicine, in which genetic tests are used to determine which drugs are best for which patients.

James P. Evans, a professor of genetics at the University of North Carolina, said that would not necessarily be the case. There is thriving competition in areas like testing for mutations that cause cystic fibrosis or Huntington’s disease, even though no company has exclusivity.

“It’s quite demonstrable that in the diagnostic area, one does not need gene patents in order to see robust development of these tests,” he said.

Note that this does not prohibit patenting the tests, it just prohibits patenting the genes.

This is a good ruling: the patenting of genes, or for that matter the patents of hedging techniques, as is the case in Bilski, which the Supreme Court will heard arguments for in November.

IP law is, at its core, public interest law (it’s in the constitution), and patents on business methods, species, and genes, do not serve the public interest

Earlier posts on the subject.

^*This is what got us that Mercedes ad where they say that they have a patent on crumple zones, but “Never enforced the Patent”. They never enforced the patent, because it is not recognized anywhere else in the world.^†
†I believe Germany changed their patent laws at some point in the 1970s.^‡
‡I offer the caveat that these comments in the footnotes regarding the Mercedes patent are recollections of a conversation over a decade ago vague 20+ year old memories though, so YMMV, though a Google search does have people who recall the ad.