Milbank: In the weeds without genetic map
WASHINGTON Mitt Romney had it wrong. Corporations aren't people corporations own people.
The Supreme Court Monday took up the unusual question of whether corporations control our genetic material specifically, whether a Utah-based company called Myriad Genetics has valid patents on the human genes BRCA1 and BRCA2, which are related to breast and ovarian cancers.
That a company most people have never heard of could have the exclusive rights to pieces of our DNA is a bit unnerving.
More than a bit unnerving: The ownership of our genes is being decided by nine justices who, although brilliant legal minds, are not exactly biotechnologists.
They wrestled with nucleotides and covalent bonds. They spoke of mRNA, cDNA, introns and exons. They dabbled in tagging and base pairs.
"If you could get a super-microscope and look at what they have with the cDNA," Justice Stephen Breyer postulated, "you would discover something with an A there, you see, and you wouldn't discover something with a U there. And there is no such thing in nature as the no-introns AGG, whatever."
The justices broke down the building blocks of life into terms they could understand better, such as bodily organs, Amazonian plants, baseball bats and chocolate chip cookies.
The last analogy was provided by Sonia Sotomayor. Like a kid trying to impress her science teacher, she piped up 38 times for questions during the hour, far ahead of the second-place Breyer (26) and just two shy of the combined output of Antonin Scalia, Samuel Alito, Anthony Kennedy, Ruth Bader Ginsburg and the silent Clarence Thomas.
Sotomayor's fellow justices appeared exasperated with their know-it-all colleague; Chief Justice John Roberts extended one lawyer's time after Sotomayor badgered him with questions, and Alito tried to redirect the proceedings after she treated the court to an extended baking analogy.
"I can bake a chocolate chip cookie using natural ingredients: salt, flour, eggs, butter," she said. "And if I (combine) those in some new way, I can get a patent on that. But I can't imagine getting a patent simply on the basic items."
As Myriad's attorney, Gregory Castanias, tried to answer, Sotomayor kept breaking in with kitchen talk: "So I put salt and flour, and that's different? ... Now you can get a patent on the flour?"
Castanias told her the question showed "the problem with using the really simplistic analogies, with all due respect."
There was laughter in the courtroom.
Based on the justices' questioning, there was little doubt that corporations such as Myriad have a legitimate claim to the DNA in our bodies. The argument was mostly about whether corporations own the material itself or merely have the exclusive rights to use our genes for research and commerce.
Castanias likened the gene sequence the company clipped from the human genome to a baseball bat, because it "doesn't exist until it's isolated from a tree."
Roberts balked at this analogy. "You don't look at a tree and say, 'Well, I've cut the branch here and cut it here and all of a sudden I've got a baseball bat,'" he said.
Alito, too, asked about the bat, "which at least I can understand better than perhaps some of this biochemistry." Alito likened the gene discovery to serendipity, like a tree branch that has "fallen into the ocean and it's been manipulated by the waves, and then something's been washed up on the shore, and what do you know? it's a baseball bat."
Elena Kagan preferred to liken the company's gene discovery to "the first person who found a liver."
And Breyer wondered if patent protection could apply to "anything from inside the body that you snip out and isolate."
Castanias assured the justices that the gene discovery was not at all comparable to patenting a slice of "liver, kidney, you know, gallbladder pick your organ."
Alito chose a vegetable instead. "Suppose," he said, that medicinal benefits were found in "the leaves of a plant that grows in the Amazon." Further, Alito proposed, "it's not just the case of taking the leaf off the tree and chewing it. ... It's extracted and reduced to a concentrated form."
Thus began a harvest of horticultural hypotheticals:
"If we simply pick the leaf off the tree and swallow it ..."
"It's uprooted and taken out of the forest ..."
"Captain Ferno goes to the Amazon and discovers 50 new types of plants ..."
The justices were deep in the weeds without a genetic map.
Follow Dana Milbank on Twitter, @Milbank.