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Patenting genes: How much science must judges know to decide legality?

In April, the Supreme Court of the United States decided to hear arguments regarding the patentability of genes. The argument was brought forth specifically because the genes BRCA1 and BRCA2, which are of considerable interest to breast cancer researchers, have been patented by a company called Myriad Genetics Inc. In the opening argument, Mr. Christopher Hansen, who is arguing on behalf of petitioners said, "One way to address the question presented by this case is what exactly did Myriad invent? And the answer is nothing" -- in reference to their claim on the patents of the BRCA genes. The core of the argument can be boiled down to this: Is what Myriad patented something that occurs naturally or is it something that does not occur in natural form?

The details of the case go rather deep into molecular biology for those without scientific backgrounds, and I will not get further into the details of it here as it is not the point of the discussion. What has drawn my interest to the case is whether judges have enough of an understanding of molecular biology to understand what is even being discussed. From the script of the hearing it is evident that some of the judges struggled with understanding some of the science being discussed. "When I first looked at this case, I -- I thought that maybe the cDNA was kind of an economy class gene, was -- it wasn't. But my understanding is that it may have a functionality that the -- the DNA isolate does not, easier to tag, et cetera. That may be incorrect for the record, but that was my present understanding" said Justice Kennedy.

Accordingly, I think it should be questioned how appropriate it is for these judges to decide on such cases. It is certainly true that from a legal point, these individuals are unquestionably amongst the most knowledgeable, and their decision with regards to legality is foremost; however, they remain bound by their understanding of what is being argued. Therefore, their decisions are largely based on the information and consultation derived from others.

Considering the tremendous impact on the scientific community this ruling could have, it may become necessary to reevaluate the current model for how manners requiring significant scientific expertise are decided upon going forward. What is your take?

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