This week the U.S. Supreme Court ruled unanimously that genes can’t be patented. This was the best news out of Washington DC I’ve heard in a long time, because it appears to me we’re living in an era when everything is for sale.
Did you know that someone owns “The Happy Birthday Song,” that little ditty we all sing many times a year? The song is copyrighted, and if you want to include it in a movie you’re going to have to pay a fee to Warner Music Group. How do the lyrics go? “Happy birthday to you, Happy birthday to you, Happy birthday dear ____, Happy birthday to you.” Wow. That’s really profound original material there!
A filmmaker, Jennifer Nelson, is making a documentary about the origins of the song, and has taken Warner Music Group to court in an attempt to have the song placed in the public domain. Warner makes about $2 million a year in licensing fees—the company probably thinks every birthday party in the world should be assessed a fee to be allowed to sing the song.
The Supreme Court case, Association for Molecular Pathology v. Myriad Genetics, No. 12-398, concerned whether Myriad Genetics could obtain a patent on genes the company had identified as being correlated with higher risk of breast and ovarian cancer. The New York Times reported:
The central question for the justices in the case was whether isolated genes are “products of nature” that may not be patented or “human-made inventions” eligible for patent protection.
Myriad’s discovery of the precise location and sequence of the genes at issue, BRCA1 and BRCA2, did not qualify, Justice Thomas wrote. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” he said. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes.”
“Myriad did not create anything,” Justice Clarence Thomas wrote for the court. “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”
So even Clarence Thomas and Antonin Scalia believe some things cannot be owned. This is good news indeed.