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    Gene Patents: Justice Scalia Dissents On High School Science
    By Robert Cooper | June 14th 2013 04:28 PM | 23 comments | Print | E-mail | Track Comments
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    I have given up on categories. I did a BA in physics, a PhD in molecular biology, and now a postdoc in a bioengineering department. So call that...

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    The U.S. Supreme Court just released a groundbreaking decision about the ability to patent genes – the assembly instruction for life.  

    Amid much discussion about potential implications for the biotech industry, a separate, extremely troubling aspect of this decision has largely slid under the radar: one of the SCOTUS Justices dissented with basic science saying he is "unable to affirm... knowledge or even my own belief" in high school biology

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    Apparently the idea of DNA → RNA → protein is too controversial for Justice Scalia.
    The question was whether Myriad Genetics could claim exclusive rights to two genes - BRCA1 and BRCA2 - that can determine your genetic risk for BReast CAncer.  Myriad found these genes within the human genome, sequenced them, and obtained several patents that they used to prevent other companies from developing tests for the high-risk gene variants.  This monopoly increased the cost of BRCA-based genetic testing, like the one Angelina Jolie recently used to discover her own genetically increased risk of BReast CAncer. So other companies and patient advocate groups sued, arguing that genes found in nature should not be patentable.

    To the joy of patient advocates, SCOTUS decided 9-0 that natural genes cannot be patented - "Myriad did not create anything... it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention".  This sounds like an easy decision, but the case involved some intricate details that required understanding of some basic biology.  In particular, the court found that a naturally occurring DNA sequence can't be patented, but it upheld patents on alterations of that sequence.  Many genes come with commercial breaks, known as introns, and biologists routinely remove those breaks to splice the gene back together in an uninterrupted form, which we call cDNA.  cDNA, according to SCOTUS, "is not 'a product of nature' and is patent eligible".

    Because the decision required basic biology, Justice Clarence Thomas began his decision where all things should begin, with an introduction.  This introduction explained the basic concept that DNA holds genetic information that is transferred to RNA and then to proteins, and that some DNA has introns that are spliced out during the RNA step.  This is so central to biology that it is known as "the Central Dogma".

    Apparently, however, either the idea of an introduction or this basic high school biology was too controversial for Justice Antonin Scalia, who filed his own one-paragraph opinion "concurring in the judgment", but dissenting with "the fine details of molecular biology."  Justice Scalia's rejection of basic science did not affect the outcome of this case, but in a world where science and technology are playing an ever-increasing role in society (see, oh, I don't know, this Supreme Court case), this dissent with the past half-century of universally accepted (in the scientific community, anyway) biology by one of the most powerful men in America is profoundly disturbing.
    I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.
    Read the whole decision, including the rather well-written and scientifically accurate biological introduction here, and read about the rather odd contradictions and loopholes here.

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    Update:  Many people have suggested the interpretation that Justice Scalia was simply showing humility in admitting he did not understand the scientific background of the case.  This does not add up for the following reasons:
    1.  If Justice Scalia did not understand the facts of the case, he could and should have recused himself.  He did not.  He rendered a judgement regarding the legal question at hand.
    2. He could have simply ended with "my own knowledge", but he went on to say "or even my own belief".  No one chooses their words more carefully than a Supreme Court Justice (well, poets and novelists, maybe), so we must believe he intentionally included "my own belief" to express doubt.  There are no throwaway clauses in a formal Supreme Court opinion.
    3. The scientific introduction was not controversial, it was not questioned in the case, SCOTUS was not deciding anything about science, and the introduction of an opinion does not dictate law, neither for America nor for nature.  They simply needed to understand the scientific facts of the case in order to decide how the law applies to it.  Every one of the experts in the room, on both sides, would have told Scalia DNA works in the same way.  Dissenting with the facts of the case is unusual, and Scalia went out of his way to do so.  Commenter Chris put this rather well: 
    The introductory factual part of an opinion is not in any way law or controlling precedent (not even part of the noncontrollling legal discussion lawyers at times call dicta). Judges do not normally dissent from the factual part of an opinon, unless to say the majority opinion does not accurately recite the facts. Scalia's dissent has no legal importance, so appears to be politcal and his personal views. He is intending on making a statement, but what is unclear.
    And just to preemptively head off any big-bad liberal/conservative partisanship, remember the majority opinion was written by Justice Clarence Thomas, whom wikipedia (sorry) says "is generally viewed as the most conservative member of the Court".

    Comments

    Scalia graduated from high school in 1953, the same year that Watson and Crick announced the double-helix model of DNA. I think Scalia was just pointing out his own lack of expertise in the subject. Scalia is not the only government official lacking in science education as this quote from Obama shows: "We've seen just a skyrocketing autism rate. Some people are suspicious that it's connected to the vaccines. This person included. The science right now is inconclusive, but we have to research it."

    Hank
    Right, there is no chance anyone in government has expert knowledge regarding every policy. Obama likely knew little about autism when he said that but he was told that Democrats believe it, so it made a good speech. 

    Supreme Court justices make all their decisions with similar limitations but we tend to only notice when it's things we know a lot about. 
    car2nwallaby
    I think Scalia was just pointing out his own lack of expertise in the subject.
    I initially considered giving Justice Scalia this benefit of the doubt; I have the utmost respect for people who are willing to say "I don't know enough about this so I withhold my opinion".  But he didn't withhold his opinion - he sided with the rest of the court on the legal decision, while saying he doesn't believe in the science on which it was based.
    there is no chance anyone in government has expert knowledge regarding every policy. 
    Sure, but if you're a Supreme Court Justice, it is your job to either fully make sure you understand the issue at hand, or to recuse yourself from the decision.  Justice Scalia wasn't cold-called on molecular biology on the street - he had the full, undivided attention of a room-full of experts who were perfectly willing to tell him anything he wanted to know.  And I can guarantee you there were no "equal and opposite experts" questioning how DNA works - there's  no controversy there.  So after a full court hearing, we can exclude lack of information and trust Scalia's own words as to why he felt the need to file a formal dissent with high school biology: "my own belief".  And this isn't a liberal vs. conservative thing - the other 8 justices were unanimous, and the nice biological introduction was written by Justice Clarence Thomas.
    we tend to only notice when it's things we know a lot about. 
    Or when we actually bother to read the decisions (point taken).  It was actually remarkable accessible to a non-constitutional scholar.
    I agree with everyone else. I think you were hoping to accuse Scalia of an anti-science agenda based off your own prejudice. I think it was clear he was admitting humility and ignorance concerning this scientific area.

    I think you showed poor form in your accusation and should send Justice Scalia a written apology.

    Hank
    I agree with everyone else. I think you were hoping to accuse Scalia of an anti-science agenda based off your own prejudice
    Who else said that? If the man is making national policy decisions based on a flawed understanding of science, of course people will call him out.  The issue (and the discussion) was whether or not that is the case. I don't see that Dr. Cooper was using poor form.
    Gerhard Adam
    If the man is making national policy decisions based on a flawed understanding of science, of course people will call him out.
    He's not.  He's interpreting the law. 
    Mundus vult decipi
    Hank
    Please use the entire quote and it is obvious that is what I said:
    Who else said that? If the man is making national policy decisions based on a flawed understanding of science, of course people will call him out. The issue (and the discussion) was whether or not that is the case.
    That you don't agree on his positioning between policy and science does not mean no discussion is warranted. 
    Gerhard Adam
    You're right.  Apologies.
    Mundus vult decipi
    The tone and tenor of the article is that of accusatory outrage, and I feel that is misplaced.

    I agree with the author's initial curiosity at the phrase "in my own belief" but diverge with him as he wildly accuses a highly intelligent, respected supreme court justice of something more than an admission that he is not a molecular biologist.

    Admittedly, it is my own wild accusation that the author's leap to conclusion was based in prejudice and did not mean to lump in other commenters. I think my accusation, however, is accurate.

    car2nwallaby
    I apologize if my tone had excessive snark, but I do believe dissenting from the the facts-of-the-case introduction was unwarranted.  You aren't the only one to suggest I've misinterpreted Justice Scalia's intentions, but Justices choose their words very carefully in formal opinions, so I have to believe he meant every word of what he wrote and their implications.  I recently put an update at the bottom of the article to address the suggestion he was simply being humble - I hope it answers some of your concerns.
    At any rate, I'm not out to push a liberal/conservative agenda based on partisan prejudice.  Scalia's dissent, remember, was with an opinion written by Justice Clarence Thomas.
    Gerhard Adam
     So after a full court hearing, we can exclude lack of information and trust Scalia's own words as to why he felt the need to file a formal dissent with high school biology: "my own belief".
    I think you're reading too much into it.  He simply said that he could not lend his support for a portion of the ruling for which he felt unqualified.  He didn't say he didn't believe it, he simply said that he lacked the knowledge to affirm it and it wasn't even something that he could cite any particular belief in.  In short, he did recuse himself from affirming that part of the decision because he felt he was unqualified.

    He didn't reject the science, he simply indicated that he was relying on the expert testimony and others to include that portion in the decision.

    In other words, he said that he agreed with the court's ruling based on a reliance on other's expertise.  That sounds like a quite reasonable position to take.
    Mundus vult decipi
    car2nwallaby
    I think the question here is whether dissenting with the background information necessary to decide a case is common in court decisions.  If dissenting with the introduction is common, then you're right and I'm reading too much into it.  But if it's not, then Justice Scalia went out of his way to make an exception for a case involving molecular biology.  And I have to assume that SCOTUS Justices choose their words extremely carefully, so the additional phrase "or even my own belief" as a modifier to "on my own knowledge" was intentionally included to mean something.  Is there a constitutional scholar in the house?
    Gerhard Adam
    I'm sure you're right, but I still don't see what you're seeing in doing so.  I think it is important to recognize that the decisions the Supreme Court lays out are also legal decisions.  Therefore, from the legal perspective it may make sense for Scalia to say that, while he agrees with the court's decision, he doesn't want to put his name on some scientific component of it, giving it the power of law without himself feeling qualified to have made such a decision.

    In fact, a strong argument could be made that the court should limit itself in such matters, precisely so that their interpretation of scientific matters don't find their way into some attorney's argument in a lower court.
    Mundus vult decipi
    car2nwallaby
    he doesn't want to put his name on some scientific component of it, giving it the power of law
    I agree, that would be a scary world indeed if SCOTUS could decide the laws of nature!  But I don't think they were deciding that.  The structure of the decision was: this is how the court understands DNA to work, and based on that, this is how the law is applied.  The intro isn't a decision in itself, it's an explanation of their thought process.  It's there so that, in the highly unlikely event that we discover we were wrong about DNA all along, later courts can say: Oh, the relevant knowledge has changed, so this decision is no longer valid.  Or at least merits reconsideration.
    Gerhard Adam
    It isn't a matter of deciding the laws of nature, but rather how such laws could be interpreted by lower courts.

    One could readily see an attorney working with a company trying to find a loophole to get something patented and citing the Supreme Court's decision as a guideline for the criteria of what constitutes a "natural" process versus an invention.  It certainly wouldn't be the first time.

    As it stands the introduction is already problematic, since it presupposes that the only DNA that counts is that which codes for proteins.  Is that truly what the justices should be expressing?  There are so many permutations of what constitutes a natural process, it would have been better for them to keep quiet about the science and simply rule that such natural occurrences cannot be patented.  Unless a company can demonstrate actual "invention", then there should be no patent protection, regardless of how novel the use is.
    Mundus vult decipi
    You're not spelling out your argument here. Presumably you mean that RNA obviously exists in nature, and that cDNA is essentially equivalent to it. But normally only viral RNAs are reverse transcribed to cDNA. Human mRNAs (probably) usually aren't RT:d in nature, but scientists use reverse transcriptases in the lab to study cDNAs because they are more stable than mRNAs. So human cDNAs are mostly lab constructs - even though they are essentially equivalent to mRNAs. The court is probably misguided - but your blog post doesn't spell out why.

    car2nwallaby
    Well put, but that's a completely different problem with the ruling, not at all what this post is about. Hopefully I'll have time to go into the quirks and koopholes like that in another post later today. 
    car2nwallaby
    Ok, here's the article you thought you were commenting on.
    The introductory factual part of an opinion is not in any way law or controlling precedent (not even part of the noncontrollling legal discussion lawyers at times call dicta). Judges do not normally dissent from the factual part of an opinon, unless to say the majority opinion does not accurately recite the facts. Scalia's dissent has no legal importance, so appears to be politcal and his personal views. He is intending on making a statement, but what is unclear.

    logicman
    I am unable to affirm those details on my own knowledge or even my own belief

    I am able to affirm on my own knowledge that this is legalese for: "I do not understand enough about the matter under discussion, or the expert evidence given,  to make a considered comment on it either way."

    Justice Antonin Scalia did not dissent, in the strict legal meaning of that term: he took pains to record that his assent was based purely in his knowledge of law, and not on his personal knowledge of or belief about the science.  A statement of belief or non-belief, in a legal context, is a statement about a belief arrived at having been  informed by evidence.

    Had Justice Scalia really dissented he would have done so in no uncertain terms, as is his wont.

    If judges had to recuse themselves on the grounds that they had no personal knowledge of the science at issue then we would have almost no criminal trials.  How may judges do you think understand forensics, for example?  How many judges know what force is needed to fracture a hyoid bone ,  or what is the significance of a petechial hemorrhage?  That is why courts rely on expert witnesses - as they did in the previous cases cited within this patents case.

    car2nwallaby
    How may judges do you think understand forensics, for example?  How many judges know what force is needed to fracture a hyoid bone ,  or what is the significance of a petechial hemorrhage?
    How often do judges go out of their way to state they cannot affirm their belief in the expert testimony received?  You're absolutely correct: courts rely on expert witnesses every day.  That's why it's so strange that, out of all the highly technical out-of-his-field testimony he's heard, Justice Scalia felt the need to distance himself from their testimony for this case in particular.
    logicman
    it's so strange that, out of all the highly technical out-of-his-field testimony he's heard, Justice Scalia felt the need to distance himself from their testimony for this case in particular.

    I don't think he was 'distancing himself'.  The issue in this patents case was at a more complex level of biological science than is the science of DNA matching.

    Now, if you want to see what happens when Justice Scalia really dissents on DNA, please read his dissenting judgement, page 33 et seq of this 50 page pdf.  You will probably find yourself agreeing with him.

    h/t Charles P. Pierce

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    car2nwallaby
    I think "distancing himself" from the biology would be the kindest possible interpretation of his opinion.  And certainly the issues were more complex than the Supreme Court seems to have realized, as I went into in part II.  But Scalia disagreed with the introduction, which was pretty basic biology, while concurring with the actual self-contradictory decision itself.
    The other DNA case was about the legal intricacies of warrantless search, and the only reference to how DNA works was just as a means of identification.  But yes, he does seem to construct some quite impressive prose when he wants to. I certainly respect his willingness to forcefully say what he believes! Admittedly, I don't know him and I may be misinterpreting his intent, but I think it's a valid reading of his paragraph.  Clearly he disagrees with something in the case. If it was the reasoning of the court he would not have pulled any punches, but he concurred with the actual decision, so what other reason is there for his separate opinion?