In an amicus brief filed with the United States Court of Appeals for the Federal Circuit regarding the ACLU-Myriad gene patenting case, James Watson argues that genes should not be patented. (Duke University's Center for Public Genomics has posted the brief here.) Watson writes that genes are a product of nature and encode "vital information" that directs whether a person is male or female, or blonde or brunette. Further, Watson says that one goal of the Human Genome Project was to make the information that it uncovered available to all researchers, and that he left the US National Institutes of Health when it decided to pursue gene patents. Watson adds that "unfortunately, a decade later, private companies are still trying to unnecessarily restrict access to human genes and the information encoded in those genes."
The brief also states that "lawyers and judges misunderstand scientific research when they contend that patent protection is necessary to encourage scientists to discover human genes. A scientist does not — and should not — expect to obtain a legal monopoly controlling the information encoded by human genes." Finally, Watson adds that if genes are patented, that may lead to delays in the development of diagnostic tools that rely on multiple genes. He suggests that patent holders should be required to license them to researchers.
At Patent Docs, Kevin Noonan says that of Watson's three arguments, two are "wrong" and the other is "fraught with difficult consequences beyond his experience." Noonan writes that Watson's argument that genes are different from other molecules "is a policy one outside the scope of the judiciary's purview." Further, Noonan says, patents on genetic information do not stop researchers from using that information. He notes that entities involved in the Human Genome Project did file for and receive patents. "These companies performed precisely the academic and scientific service Professor Watson espouses and the patent system promotes: disclosure of the information to be used freely by others." Finally, Noonan says that Watson's concern about multiple-gene-based diagnostics is valid, but he adds that the patents would likely not be in force by the time such diagnostics are around.
Duke's Center for Public Genomics notes that oral arguments in the case will be held Friday.