In our class discussions about "genetically modified literature," culture, and copyright, our focus has been on intellectual property law (IP law) — in particular, copyright law — and works of the imagination such as poetry, novels, films, and music.
We've used genetic recombination as a metaphor for the way writers and other artists take the cultural material around them and splice and dice it to make new, creative works of imagination. Some critics argue, we've seen, that an intellectual property regime that is too tight — that too severely limits the free circulation of cultural material — that requires artists to seek permission constantly before using the genetic stuff or "code" of culture — is a threat to culture itself.
But did you know that 20% of humanity's real genes have been patented? That's right: private entities own patents on human genes themselves. Not just methods for isolating or working with genes: the genes themselves.
However, as the New York Times reports today, a federal district judge has issued a decision invalidating "seven patents related to the genes BRCA1 and BRCA2, whose mutations have been associated with cancer."
The implications of the case, and of intellectual property law regarding nature (as opposed to culture), are huge. The case is certain to be appealed. Since the Supreme Court ruled, 5-4, in 1980, that it is possible to patent a new living organism (for example, a genetically engineered bacterium), the defendants in the cancer-gene case have some degree of precedent on their side. On the other hand, there's arguably a difference between patenting manufactured living things and patenting the already existing natural world around and within us, such as our genes.
As the Times points out, "the [district court] decision, if upheld, could throw into doubt the patents covering thousands of human genes and reshape the law of intellectual property."
It will be one to watch.