On April 12, 1955, Jonas Salk, who had recently invented the polio vaccine, appeared on the television news show “See It Now” to discuss its impact on American society. Before the vaccine became available, dread of polio was almost as widespread as the disease itself. Hundreds of thousands fell ill, most of them children, many of whom died or were permanently disabled.
The vaccine changed all that, and Edward R. Murrow, the show’s host, asked Salk what seemed to be a reasonable question about such a valuable commodity: “Who owns the patent on this vaccine?” Salk was taken aback. “Well, the people,” he said. “There is no patent. Could you patent the sun?”
The very idea, to Salk, seemed absurd. But that was more than fifty years ago, before the race to mine the human genome turned into the biological Klondike rush of the twenty-first century.
You have to ask, how is it possible that my doctor cannot look at my DNA without being concerned about patent infringement?” The biotechnology industry contends that if the patents aren’t upheld, entrepreneurs and many businesses, particularly pharmaceutical and agricultural companies that rely heavily on genetically-modified products, will have less incentive to innovate.
In arguments before the appeals court, lawyers for Myriad compared the use of the genes that the company has patented with efforts to extract minerals from the ground. Without the man-made process of extraction, the minerals are useless. When Judge William Bryson of the United States Court of Appeals for the Federal Circuit asked Myriad’s attorney Greg Castanias if that meant that simply getting an element out of the ground ought to be considered an invention—he used lithium as an example, but he could have chosen anything from the periodic table of elements—Myriad’s lawyer said yes.
Jonas Salk would not be amused, but if the Supreme Court buys Myriad’s argument, the sun, along with the carbon, hydrogen, and oxygen contained within it, will indeed be up for grabs. And so will every gene in our bodies, as well as all the DNA that scientists have mined, with increasing success, in their efforts to overcome the diseases that plague us all.