Big news today: the Supreme Court has ruled that
naturally
occurring genes are not patentable.
This is a Big Fucking Deal, as Joe Biden might say. But it’s not as
complete a victory as it may seem on the surface. The ruling explicitly
excludes cDNA, and notes that the case didn’t address methods,
applications of knowledge, synthetic DNA, or alterations of gene
sequences that do occur in nature*. Lots of room to negotiate
privatization there - indeed, that sentence could be the next
“by means of a
computer program” in patent law, though it doesn’t have to be so.
This is a ruling that resets the default to unpatentable, as Mike Eisen
rightly pointed out on twitter. That’s why it’s big. But it doesn’t
close the door, at all, on lots of patents in and around DNA*. That’s
why the biotech stock index is up today*.
I’m actually not nearly as interested in those parts of the ruling
though. What this means for me is more that the biggest barrier to
building a commons of mutations with diagnostic potential is gone: the
inability of DTC sequencing companies like
23andme to reveal the status of its customers
to its customers because of patents. The companies that rely on these
patents now have to move to trade secret approaches, as
Myriad
already has done, and the thing about trade secrets is…we can
compete with them.
What the patents did was make it impossible, illegal, for us to build
commons-based competition. They were enforcers on trade secrecy. Those
enforcers are gone. We can now go straight to the citizen and say, get
yourself genotyped, and donate your data to science.
At Sage Bionetworks, my non-profit employer,
we’ve built a system that allows precisely that. It’s called Portable
Consent, and we’ve got a study called the Self-Contributed Cohort for
Common Genomics Research.
You
can enroll and donate your data in less than ten minutes, start to
finish.
So go get yourself genotyped. Download your data. And donate it to
science. Let’s stop fighting companies that privatize, and start
competing with them.
Note: edited post at 12:15PM EST for clarification of a few points.
Those sentences carry asterisks at the end.