They're not creating a new chemical entity. The gene was created by evolution (natural selection, genetic drift, mutation) millions of years ago. The DNA sequence existed and performed its function long before any human began studying it. Furthermore, such information could already be found isolated in the form of mRNA, which contains the same information as the DNA gene (with the thymines replaced by uracils). Ultimately, what really matters for the function of the cell and even the diagnostic method is the information coded in the DNA, RNA, or protein. You are simply using a different alphabet to represent the same thing. And because the information was designed by nature, it shouldn't be patentable.
Nearly all experiments require you to modify what you're observing in order to measure it. That's why I feel the argument asserting that because you "modify" something makes it susceptible to patent protection is weak. If I combine water with some powder and sell it, I can patent the final product or maybe even the process to make it, but not the water. Water was present before I had the idea. BRCA1 was there before we had the idea of linking it to cancer, it's a substance just like water.
The troubling thing in this case is there's not even a modification involved. Cutting a DNA segment from the chromosome doesn't alter its sequence. In fact, separating DNA pieces happens routinely during recombination.
The problem is that they're not only protecting the diagnostic tool like the majority ruling says, they're claiming ownership of a chemical substance present in all humans that was invented by nature. I would support patenting the DNA sequencing method they used, but never the gene itself.
If the argument is that the gene is modified in its isolation by changing the terminating amino acids, we could extend the analogy to include changes to the electron shell of an element brought about by chemical processes.
But if the copyright is on the isolated gene, then I think the logic would follow that the copyright wouldn't apply to instances of the gene that haven't been isolated. Ie, plucking a leaf wouldn't allow you copyright leaves, but would allow you to copyright plucked leaves. (Which is stupid, but for different reasons.)
So yes, by extension they would hold no copyright over the genes in a given person's body, but it might extend to cover any tests or work that is done with those genes in the body - such as cancer screening tests.
If that's what they patented, then I think we're all in the clear... DNA doesn't have amino acids. Whew! And here I thought a court might have made a terrible mistake in a ruling about something that they didn't fully understand.
"We recognize that biologists may think of molecules in terms of their uses, but genes are in fact materials having a chemical nature and, as such, are best described in patents by their structures rather than by their functions" [1]
The blogger goes on to state in more plain terms :
"In other words, this ruling affirms that molecular biology is, in fact, chemistry, if you want to look at it that way."
[1]http://pipeline.corante.com/archives/2012/08/17/the_myriad_g...
Below is a description, from a patent law blog, of the change that occurs during the gene isolation :
"To be clear, the change in the molecule that the court is discussing is that the isolated DNA molecule is cleaved from the larger chromosomal DNA molecule by enzymatically cutting it off at each end and slightly altering the terminal amino acid groups." [1]
From the same link, one judge ruled this as akin to plucking a leaf from a tree. While the analogy is simplistic - how is it [conceptually] different?
Judge rulings below :
Judge Bryson [minority] :
[E]xtracting a gene is akin to snapping a leaf from a tree. Like a gene, a leaf has a natural starting and stopping point. It buds during spring from the same place that it breaks off and falls during autumn. Yet prematurely plucking the leaf would not turn it into a human-made invention. That would remain true if there were minor differences between the plucked leaf and the fallen autumn leaf, unless those differences imparted "markedly different characteristics" to the plucked leaf.
Louie & Moore [majority ruling] :
It is also important to dispute the dissent's analogy to snapping a leaf from a tree. With respect, no one could contemplate that snapping a leaf from a tree would be worthy of a patent, whereas isolating genes to provide useful diagnostic tools and medicines is surely what the patent laws are intended to encourage and protect. Snapping a leaf from a tree is a physical separation, easily done by anyone. Creating a new chemical entity is the work of human transformation, requiring skill, knowledge, and effort.
[1]http://www.patentlyo.com/patent/2012/08/gene-patent-debate-c...