Podcast Summary: "Lessons – The Supreme Court Battle Over Your Genes"

Success Story with Scott D. Clary | Guest: Jorge Contreras (Harvard Law Professor) | November 24, 2025

Episode Overview

This "Lessons" episode features a compelling conversation between host Scott D. Clary and Harvard Law Professor Jorge Contreras. The discussion dives deep into the complex legal, scientific, and societal issues surrounding the patenting of human genes—an important and controversial topic that culminated in a landmark Supreme Court decision. Contreras explains how gene patenting blurred the distinctions between discovery and invention, why patents were granted for isolated DNA, how this stifled research and diagnostics, and the legal challenges that ultimately changed the rules of genetic ownership.

Key Discussion Points & Insights

1. What Does It Mean to Patent Genes?

• Distinction between Discovery and Invention

  • (00:44) Prof. Contreras explains that traditionally, patents protect human inventions, not products of nature.
  • Example: Discovering a new berry = not patentable. Making a drug from that berry = patentable.
  • Quote:

    "You can't get a patent because you didn't invent it, you just found it."
    — Jorge Contreras (00:59)

• The Core Legal Dilemma

  • Patent law struggled to draw a clear line between what is a natural product (not patentable) and a human-made application of nature (patentable).

2. The Mechanics of Gene Patenting

• Composition of Matter Patents
  • (02:51) Companies and institutions patented isolated DNA sequences as "compositions of matter," similar to patenting synthetic materials (e.g., polyester).
  • Control of Research and Diagnostics
    • The patent holder held exclusive rights to diagnostics, drug development, and research using that gene.
    • Quote:

      "Composition of matter patents are hugely, hugely valuable and broad."
      — Jorge Contreras (03:46)

    • Example: The patent on a DNA sequence gave the holder the right to block all others from diagnostic testing for mutations—a major control point for public health.

3. Intellectual and Legal Leap: Isolated DNA as Patentable

• The "Lawyer's Trick" and Patent Office Reasoning

  • (04:33 & 07:57) Contreras analogizes: You can't patent a branch, but if you carve it into a baseball bat, the bat could be patentable. Isolating and purifying a gene from its natural state was similarly deemed an "invention."
  • Quote:

    "...when it's isolated outside of the body, it was considered to be a new thing, a new composition of matter."
    — Jorge Contreras (09:07)

• Technical Challenges and the Human Genome Project Era

  • Back in the 1980s and 90s, scientists raced to locate, extract, and sequence genes associated with diseases, like cystic fibrosis (CFTR gene).

4. First Human Gene Patents and the Precedent They Set

• Origins: The CFTR Gene
  • (11:21–12:09) The University of Michigan team led by Francis Collins (now NIH Director) patented the CFTR gene (for cystic fibrosis), setting early precedent.
  • The late 1980s and 1990s saw a surge in gene sequencing and patent applications.

5. The Impact: BRCA Genes, Patents, and Monopoly

• The BRCA1 and BRCA2 Genes
  • (12:44) University of Utah and spinoff Myriad Genetics isolated the BRCA1 and BRCA2 genes, closely linked to dramatic increases in breast and ovarian cancer risk.
  • Patent Fallout:
    • Once these patents issued, Myriad shut down all competing labs performing genetic tests for BRCA mutations in the U.S.
    • By 2000, Myriad had a monopoly on testing—a precedent with massive implications for research, patient access, and health advocacy.
    • Quote:

      "By 2000, they're the only game in town. And there's a lot of...criticism in the academic community, among cancer advocacy groups, but...this is not widespread."
      — Jorge Contreras (14:25)

6. Why Did Challenges Take So Long?

• Sociological and Institutional Inertia
  • Despite the evident importance, it took years for anyone to mount a significant legal challenge to gene patents.
  • The concentrated impact on specific patient populations (like women with BRCA mutations) and the academic nature of much early criticism delayed broader public and legal pushback.

Notable Quotes & Memorable Moments

• On the Patent System’s Original Intent:

  “You can't get a patent because you didn't invent it, you just found it. Now, if you make a medication out of the berry...then yes, you can patent that.”
  — Jorge Contreras (01:00)

• On the Control of Research:

  “Whoever owns that patent can then control all research relating to the genes.”
  — Jorge Contreras (02:53)

• On the Stretch of Isolated Gene Patents:

  “So the judge who heard this case...called this a lawyer’s trick, how these patents came about.”
  — Jorge Contreras (02:59)

• On Monopoly & Patient Impact:

  “Once the patents issued, they started to shut down all the labs around the country...so by 2000, they’re the only game in town.”
  — Jorge Contreras (14:18)

Timestamps for Important Segments

• 00:44 — Explaining the concept of gene patents
• 02:51 — How gene patents enable research and diagnostic monopolies
• 07:57 — The analogy of isolating DNA vs. making a baseball bat
• 11:21 — Who obtained the first gene patents & historical context
• 12:44 — The BRCA gene case and its broad consequences for testing access

Tone & Style

• The conversation is candid, intellectually rigorous, and approachable. Contreras uses engaging analogies (“baseball bat from a branch,” polyester invention) to demystify complex legal concepts for a lay audience, while Clary steers the dialogue to the practical and ethical stakes for listeners.

Summary Takeaway

This episode shines a light on the profound stakes and tangled logic behind the era of gene patenting, highlighting how commercial and legal maneuvers changed the course of genetic science and healthcare. If you want to understand why your very DNA was at the center of a planetary debate over ownership, innovation, and the public good, Jorge Contreras offers both the backstory and the ongoing societal implications.