The more I think about the Myriad decision, the less I like it. I agree with the decision itself (i.e the holding), but not the logic. A key section from Genomics Law Report:
In his search for “markedly different characteristics,” Judge Sweet focused—and this is the most radical part of the opinion—on the critical functional property of a gene, whether in the body or in isolation: its ability to carry the information sufficient and necessary to code for a protein.
In particular, they quote the decision as saying,
DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality as it exists in the body not the information it encodes. (emphasis mine)
Distinct, really? Information can be carried by anything that can be rearranged, which is almost everything. Information content is generally measured as entropy, and the fundamental equations describing the entropy of DNA and of any other physical or abstract concept are the same, whether it’s for a drug molecule, DNA, words in a sentence, prices on the stock market, or the arrangement of atoms in a crystal. DNA is a molecule like anything else; it’s utility in biology stems from its simplicity. Proteins contain information, too, but they’re harder to work with because they often contain too much information.
If we can only patent things based on the roles we think they fill in the world at large, doesn’t that limit potential inventions in which the roles are changed in profoundly inventive ways? Take metal. In the past, metals and alloys were valued for their strength, malleability, and ductility (i.e you could work them into shapes). Little did we know that we could use them to conduct electricity, and suddenly we have wires! Are we transforming their essential characteristics? No. Would the wire have been a patentable invention? In the past, yes! Objects in this world don’t have inherent purposes, only those we ascribe to them. How can we determine patentability based on such a subjective criterion?