by Ken Kruszka

For nearly the past decade, the U.S. Patent Office has become more vigilant in scrutinizing applications for and limiting the granting of patents in various areas, most notably in software.  The egregiousness of software patents hit its peak with the granting of the “one click checkout” patent to Amazon.com.  But, alas, software patents are a topic of discussion for another day.

Starting today, with the landmark decision handed down by a U.S. District Court judge in Salt Lake City in the case of ACLU v Myriad, genetic and biotech patents are the next to be reigned in… and it’s about time.

Intellectual property, including inventions and manufacturing processes, are and definitely should be protectable under either patents or copyrights.  But, there is a huge difference between an invention and a discovery, and Judge Robert W. Sweet correctly affirmed that simply or not-so-simply identifying an element of nature doesn’t mean that a person did anything intellectually to create it, for which that person should be able to claim ownership of that element.

First, let’s delve into ownership rights of natural objects.  While most articles harp on the “you can’t own nature” argument, that statement is a gross oversimplification of a nuanced position.  For centuries, even millenia, the people who discovered natural resources, such as gold or salt mines, laid claim to ownership over their discoveries.  Over time, the concept of mineral rights has become commonly accepted as a type of property rights.  (Although, mineral rights are distinctly different from your run-of-the-mill property rights, regardless of what we might want to believe from the fantastical situation of the Beverly Hillbillies.   Sorry to bust your bubble if you thought you could get rich from drilling for oil in your own backyard, but legal right to that oil remains with the state in which you live, in most cases.)

The difference in the Myriad case is that the natural resource in question is not extractable from the earth, it is a constituent part of a human being.  Worse yet, it is a part of many, many human beings.  Not since prior to 1865, when the atrocity codified in the Three-Fifths Compromise was rectified with the passage of the Thirteenth Amendment, has the concept of people as property held any legal validity.

Furthermore, predominant legal thought has also recognized that there are limits on an individual’s rights to treat their own bodies as property.  For instance, it is illegal to sell one’s organs.

Yet, despite over 100 years of legal precedent, in 1980, the first patent on recombinant DNA was granted, leading us down a slippery slope to today, when, at last count, an estimated 47,000 patents regarding DNA have been granted in the U.S.

Now is the time to put an end to this disturbing practice and to return scientific discovery, as opposed to invention, to the public domain… for the good of all, and for the pursuit of truth.