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US Says Genes Should Not Be Patentable
Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."
Except in patent law, there is a distinction between discovery and creation, at least in theory.
It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.
If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.
Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.
Erotic is when you use a feather. Exotic is when you use the whole chicken.
The majority of Monsanto's patents actually deal with the process of generating the transgenic organism and would be unaffected by this ruling. Similarly, any company with patents on a method for testing for a mutation would be similarly unaffected- only patents that explicitly claim a specific sequence would be undermined. Cambia has an awesome tool that will let you search the USPTO databases for whether patents on certain organisms actually claim gene sequences or just reference them.