Thursday, July 11, 2013

Medicine, Morality, And Myriad

On July 10, 2013, The New England Journal of Medicine published an article entitled "Gene Patenting - The Supreme Court Finally Speaks" that describes the United States Supreme Court decision in AMP v. Myriad as "a careful balancing act."  The authors, Aaron S. Kesselheim, Robert M. Cook-Deegan, David E. Winickoff, J.D., and Michelle M. Mello, characterize the decision as
an important symbol for those who seek to foster scientific discovery by protecting and expanding the public domain [and containing] symbolic resonance with the ideal that our common humanity cannot be owned.
[T]he law [does not] allow courts to consider whether patenting human genes — or anything else — should be disallowed on grounds of morality. There is a disconnect, then, between the reasons the Supreme Court articulated for its decision and the rich set of ethical and policy concerns that have animated much of the public interest in the case.
Yet, morality most certainly did play a role in the Myriad decision, even if not an explicit one.  Moral repugnance at the patenting of human beings has long influenced court decisions regarding the patentability of human-related inventions, as I argued on SCOTUSblog in "Nothing Under the Sun that is Made of Man."  Patent law is not the amoral field some fashion it to be.  Rather, its moral compass can be followed in the empirical patterns, rhetoric, and dicta of court decisions, statutes, and regulations.