Do Supreme Court Justices Dream of Electric Sheep?

Back in June, the Supreme Court decided Association for Molecular Pathology v. Myriad Genetics, 569 U.S. ___, 133 S. Ct. 2107 (2013) (which we previously wrote about here). Myriad was a unanimous decision in which the Court ruled that naturally occurring isolated DNA cannot be patented, but that complementary DNA (or ‘cDNA,’ an edited form of a gene) can be. Some hailed this as the end of gene patenting, but others noted that it might just change how companies patent their gene technology. But more importantly, this holding brings up a natural and much more important question: how will this affect the development of biorobotic androids?

A working biological android, the kind of terrifying entity you might see in science fiction movies like Blade Runner, is closer than you might think. Neurons grown in a lab can already interact with a robotic body. Artificial eyes will soon restore sight to the blind. Prosthetic limbs will be controlled by thoughts. These particular technological advances are amazing, and should be protected by patents. But what about the other small steps on the way to a fully functional android? Surely, at some point, someone is going to have to study human DNA to make an android realistic (for example, to make their humanlike skin compatible with a metal frame).

Luckily, the ruling may have been narrow enough to apply only to the specific science that Myriad Genetics was actually doing. That is, patenting naturally occurring genes for the purposes of cancer testing. The cDNA sequence, because the “lab technician had unquestionably create[d] something new,” is still patentable. So, while naturally occurring DNA may be off the table, simply doing something to change that DNA may be enough to get around the technicalities. This could be a method of isolating genes, or a new application of knowledge. Indeed, Myriad has already asserted many of its remaining patents on the same BRCA gene sequence at issue in Myriad.

So, our awesome robot future will be protected as long as two things happen during development: (1) genetic research companies expend the time and effort necessary to make innovative new molecular structures from DNA and (2) they’re careful to patent the genes they use to construct these androids in a way that makes clear that the DNA was not found in nature. As to the first point, developers of humanlike robots are going to have to modify DNA heavily in order to attain the strength and speed the public expects. Further, the fusion of organic and inorganic material (for the durable-yet-skin-covered frame, perfect for punching through walls, or the computer chips installed with the lab-grown brain), is going to involve modified DNA as well. Much of this can probably be protected by patents.

As to the second point, well, you’ll need to find a clever patent lawyer for that.

–Tom Hayden

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