A Quiet Blockbuster

(AP Photo/J. David Ake)

As we near the end of this Supreme Court term, a number of cases of substantial interest to politically-aware people who aren't court specialists remain to be decided. Landmark rulings involving the constitutionality of affirmative action, crucial provisions of the Voting Rights Act, and laws discriminating against gays and lesbians are still up in the air. People without access to the physical opinions handed out at the Supreme Court building used to have to wait for media reports about the outcome of cases to trickle out. Today, opinions are released almost instantaneously in PDF form, transforming late-term opinion days into a minor event.

According to Kali Borkoski of the indispensable SCOTUSBlog, more than 60,000 readers have viewed its live-blogging of yesterday's opinions, with more than 12,000 simultaneous viewers a little after 10 a.m, when the decisions are announced. However, the vast majority of these onlookers did not get rulings in the cases they were waiting for. Once again, the major civil-rights cases were pushed off for one of the few dwindling decision days left. But the Court did decide a case involving genetic patenting which may prove to to be one of the term's most consequential.

Some readers might be curious about why blockbuster cases tend to cluster at the the end of the term, even if they were argued early. For example, Fisher v. University of Texas, the affirmative-action case, was argued in mid-October but is still outstanding, while today's gene-patenting case, AMP v. Myriad Genetics, was argued in April. There are a couple of related reasons why blockbuster rulings tend to come out in late June. Potential landmark opinions tend to be more contentious—Supreme Court cases that are politically salient generally involve multiple plausible constitutional arguments groups of people are strongly committed to. Judges with similar general views of the relevant issue might disagree about the appropriate scope of the majority opinion (for example, should a precedent the majority doesn't wish to apply be overruled or merely narrowed?). And the justices (and their clerks) are surely aware that they are writing for posterity—including generations of law-school students and political-science majors who will be reading excerpts of their opinions rather than just a tiny group of specialists. For this reasons, these cases often involve not only complex majority opinions but concurrences, lengthy dissents, and further modifications as the justices reply to points raised by the other opinions. Parents Involved, the last major affirmative-action case, took up nearly 200 pages in the United States Reports, as did last year's case upholding the Patient Protection and Affordable Care Act. These long, contentious cases simply take a lot longer to write, and various justices will often be revising their opinions until the last minute. Myriad Genetics, conversely, was unanimous with one brief concurrence and weighed in at a more modest 19 pages.

The unanimity and relative brevity of the Myriad Genetics opinion should not, however, be equated with a lack of importance. The case arose from Myriad Genetics obtaining patents to cover two strands of DNA, BCRA1 and BCRA2, that researchers at the company successfully isolated. The genes were found to lead to increased risk of breast and ovarian cancer, and Myriad developed a test to discover them. There is a "law of nature" exception to patent law that prevents individuals or companies from obtaining patents for naturally occurring products or abstract ideas. A federal District Court judge held that the isolated DNA was a natural product that couldn't be patented, but a divided panel of the Third Circuit of the Court of Appeals agreed with Myriad that isolated DNA did reflect human invention and was therefore patent eligible.

Today, the Court—speaking through Justice Thomas—largely reversed the Third Circuit and held that the patents of isolated DNA granted to Myriad were not patent eligible. "To be sure," argued Thomas, Myriad "found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention." The Court did find that Myriad's cDNA, because it was synthetic, was patent eligible, but the naturally occurring BCRA1 and BCRA2 were not even if they had been isolated. As Thomas's opinion emphasizes, there is a crucial distinction to be made between the test developed by Myriad, which can be patented, and the genes themselves.

Thomas's persuasive opinion has a number of positive benefits. First of all, as Slate's Emily Bazelon notes, the patents have "been bad for women’s health." Having a monopoly meant that Myriad could charge exorbitant fees for the tests, and getting them covered through insurance was often difficult. This is a classic example of why the natural-products exemption exists; allowing companies to patent them stifles rather than encourages innovation. The decision also has important human-rights implications. (The ACLU participated in the litigation on the side that ultimately won.)* Allowing private corporations to patent genes could have serious implications for human autonomy. The Supreme Court's opinion wisely inhibited them.

When wrap-ups of the Supreme Court term finally come, Myriad Genetics will likely be something of an afterthought. But it is likely to be a decision of enduring importance, which is why it's good that it came out the right way—even if it's likely that at least two of the forthcoming civil-rights cases won't.

*CORRECTION: The first version of this story stated that the ACLU participated only in the initial litigation.  However, although only Harry Ostrer was granted standing, the ACLU wrote to inform me that it did particiapate in his representation.  I regret the error. 

Comments

I believe the intermediate appellate court in the case was the Court of Appeals for the Federal Circuit, not the Third Circuit. The former has nationwide jurisdiction over appeals involving, among other things, patents.

Some of the most forward thinking about social and psychological issues comes from stories by science fiction authors (real s.f. as opposed to kiddie action movies). This case, and the background subject area, which I have been loosely following for years, reminds me of a story I read a number of years ago (sorry, title and author forgotten), which was set in a near future in which decisions such as this one had gone WAY in the other direction. The main character had recovered from a strain of flu, and was then SUED for patent infringement by the corporation that had patented the genome of that flu virus, because he had it in his body without having paid royalties to the corporation first. I am so happy for humanity that THAT bullet has been dodged! (And you think lawyers would not propose such a tortured strand of legal reasoning if there was a profit to be made from it? Wake up and smell the coffee!)

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