Given that no one non-evil is ever appointed to the Black-Robed Gang, and that even a rare decent decision is motivated by one pressure group as versus another, I should have known better than to praise the gene decision, which I had not then read. Thanks to Richard Roland for correcting me:

The United States Supreme Court made a serious and harmful blunder in its decision in Association for Molecular Pathology v. Myriad Genetics, Inc.

Their first holding was that a gene or portion of a gene extracted as a strand of DNA from a genome is not an invention, but something found in nature, and thus not patentable. So far, so good. Unfortunately, they erred in reaching their second holding, that a strand of cDNA, which is derived by a different process, and contains only a single gene, is patentable. This means that genes do, despite the headlines, remain patentable.

In its defense of its first holding, the Court appears to understand the key concept that the essence of a gene is information – a sequence of codes that can be decoded one at a time into a corresponding sequence of amino acids, which then folds into a functional protein that is not just information, but works by virtue of its physical shape and exposed chemical properties. The Court seemed to rely on that understanding in rejecting the argument made by Myriad (and accepted by at least one lower court judge) that because the particular physical molecular embodiment of an isolated gene differs from its embodiment in a chromosome, the isolated gene is something that does not exist in nature.

For readers who are unfamiliar with this concept of the gene as information, I’ll offer a short explanation: Just as a novel should not be confused with a single physical book embodying it, a gene must be distinguished from a single tiny particular molecule of DNA embodying it. And whether that gene is physically embodied in one double-stranded length of DNA, multiple such double-stranded sequences of DNA physically separated by sequences of intervening ‘letters’ (called an intron), a single-stranded length, any of several kinds of RNA, or even characters in a file on a hard drive waiting in line to be read and cause a machine to emit a single DNA ‘letter’ to be attached to the end of a DNA sequence being artificially constructed, it is still the same gene.

However, in reaching the second holding, the Court lost its way at a particular point along the chain of events leading from a gene existing as multiple sequences of DNA tucked away in a chromosome to that same gene in its pure form ready for encoding into a protein. They claim that when a letter-for-letter DNA copy (called cDNA) of a gene embodied in an mRNA molecule containing the pure gene, without intervening introns, is created in a lab, the lab technician “unquestionably creates something new”, which is “distinct from the DNA from which it was derived”. This is where they goofed. In fact, that gene as embodied in cDNA form is identical in every meaningful way to the one in the chromosome. They lost sight of the gene itself, that is, the information: the sequence of codes. They forgot their own critique of the trap into which a lower court judge had fallen, of comparing physical embodiments rather than seeing the same precise gene in both places.

Myriad was correct when it crowed today about maintaining a robust set of patents that will prevent anyone but them from using in the fight against breast cancer what are in fact, contra this regrettable decision, the naturally occurring genes BRCA1 and BRCA2.

UPDATE from Lee Hamel: “I refer to the Supreme Court as the Nazguls, the black-robed demon wraiths from The Lord of the Rings.”

The Best of Llewellyn H. Rockwell, Jr.