DNA and the Supreme Court Reading Program

by Bob Schwartz

DNA Court
Today’s Supreme Court decision on the patentability of genetic material, Association for Molecular Pathology v. Myriad Genetics, Inc.  is another example of just how informative and fun these opinions can be, as opposed to just hearing the media summaries. This leads to a suggestion for a Supreme Court Reading Program.

Earlier posts have covered the value—in knowledge and entertainment—of reading current Supreme Court opinions, even if you are not a lawyer. This also includes reading the briefs in support of various positions, from a range of people and organizations. When the marriage equality cases were argued back in March, a post was devoted to The Briefs on Marriage Equality.

In this complex and significant gene case, the unanimous opinion of the Court (Justice Scalia concurred in a very short comment of his own) is that particular genetic material that isolated and identified (here, the site of mutations leading to breast and ovarian cancer) is not patentable, but that a new synthesized version of that same material, with the deletion of some parts, is.

Among the things that makes the opinion so interesting is its cogent explanation of a technical area. Genetics isn’t easy, and the opinion is really an understandable primer on a difficult topic.

Even more interesting are the array of briefs submitted in the case. Along with companies that want to be able to hold lucrative proprietary interest in genes, there are scientists and health care advocates who want nothing to stand in the way of free and open development and application. (The Humane Genome Project, for example, from the first offered all the work on the mapping the human genome to humanity.) Lawyers and intellectual property activists also chimed in, with intense interest in how patent law is a mess in these hyper-advancing times, having fallen so far behind the realities of digital and bio innovation. Also interesting is a brief from the Southern Baptist Convention, which taken from their church perspective makes a pretty good argument that, to put it bluntly, you can’t patent God.

So when you hear mention of an interesting Supreme Court case, either when it is argued or decided, step away from the media reports, even when those are reliable from experts you trust. Instead, visit the Supreme Court site to read or download the opinion (the opinion is published on the site almost immediately). Then visit the American Bar Association site that collects all the amicus briefs for each case that is argued. There will be a lot of those briefs—more than a hundred in the case of marriage equality—so you will want to pick and choose. Sometimes the name of the person or organization submitting the brief will catch your interest, just by who or what they are.

That certainly applies to the gene patent case. There among the many briefs is one identified as Brief for James D. Watson, Ph.D. in Support of Neither Party. Just in case the name isn’t familiar, James Watson, Ph.D. is the co-discoverer of the double helix structure of DNA, for which he and Frances Crick were awarded the Nobel Prize in Physiology in 1963. Even if he wasn’t one of the most important scientists in history, his delightful and erudite 26-page brief would be worth reading. It’s just one more example of how a Supreme Court Reading Program can be an enlightening and surprising addition to whatever else you’re currently paying attention to.

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