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crucial to some patients’ medical and personal constitutional argument raised by plaintiffs: the fail-
decision-making. Myriad’s “isolated DNA” patents ure of the patents to promote the progress of science
reached the DNA of every person in the United States. and the useful arts, as mandated by Article I. Unlike
For women with family histories of cancer, isolated Europe, the U.S. patent system does not generally
DNA was not just a chemical created in a lab. It was allow for consideration of ethical concerns or the
the blueprint for how their cells and bodies would public interest in making decisions about whether
function and could disclose whether they, their chil- to grant patents (33). The patent system is basically
dren, and their relatives faced a much higher risk set up to presume that approved patents promote
of cancer in their lifetimes. This understanding of progress (34). But “just as the act of invention can-
“isolated DNA” was key to the product of nature not stand apart from the community that integrally
argument ultimately accepted by the government fosters and supports the act of inventions, neither
and the Court. The government, through the Solicitor can deployment of the invention occur without con-
General, ultimately came to support the invalidation sideration of the impact that invention may have on
of patents on isolated DNA, in direct contradiction of the wider community”—including women patients
the USPTO’s position. Acting Solicitor General Neal (35). The plaintiffs challenged an abstract analysis of
Katyal deployed a test for patentable subject matter progress by voicing their personal and collective nar-
that emphasized the patient’s connection to this DNA ratives, demanding that their experiences be counted
and the information it contained. He argued that if in defining what counts as progress under Article I (36).
one could use a “magic microscope” and zero in on Women’s experiences with the patents were magni-
and view a particular segment of the chromosome in fied through the amicus briefing as well as the media
the body, the sequence would be the same upon iso- advocacy that accompanied the litigation. Nearly
lation and thus should be understood as a product of every brief filed in support of petitioners documented
nature (31). The “magic microscope” test reinforced the numerous detrimental consequences of these
the notion that Myriad’s patents perversely claimed patents for women’s health (37-40). Likewise, the
what existed in the human body. media attention on the case primarily explained the
Likewise, the Supreme Court dismissed the court issue through the experiences of the patients (41,42).
of appeals’ decision because it saw the patents as Asking the woman question about gene patents both
claiming portions of a patient’s genome. Judge Lourie influenced the legal proceedings and raised the vis-
of the Federal Circuit was the only judge who con- ibility of a highly technical legal and scientific issue
sidered the case to completely adopt the view that with the public. Ultimately, women’s lived experiences
isolated DNA should be patentable because chemical with the patents shaped the government’s position,
bonds are broken in the process of isolation. He said, the courts’ views, and the public’s concern about gene
“the claimed isolated DNA molecules are distinct patenting.
from their natural existence as portions of larger
entities, and their informational content is irrelevant APPLYING FEMINIST ANALYTICAL METHODS
to that fact” (31). The Supreme Court rejected this TO GENE PATENTS
view, stating that “Myriad’s claims are simply not In addition to centering on women’s experiences
expressed in terms of chemical composition, nor do with gene patents, the litigation drew from feminist
they rely in any way on the chemical changes that perspectives in developing its critique of gene patents.
result from the isolation of a particular section of I discuss here how feminist approaches contributed
DNA” (1). Isolated DNA could not have “markedly to the analysis by illuminating the ideologies that
different characteristics from any found in nature” were at the root of the gene patent policy.
when the entire purpose of Myriad’s testing was to Feminists have exposed how seemingly neutral
inform a patient about whether she had inherited rules and procedures can mask the ideologies of the
certain genetic mutations. decision-makers and reinforce the power of those in
Second, the patents’ damaging effects on wom- dominant positions. Applied to intellectual property
en’s lives became a major component of a novel law, Dan Burk has observed: