Over the past few decades, scientists have made breakthroughs in understanding how genetic mutations contribute to disease in the human body. This has led to the availability of genetic testing, allowing patients to know whether they carry a particular mutation and allowing doctors to provide appropriate medical treatment based on test results. Thus, knowledge of one’s genetic information can help people make informed decisions regarding medical treatment.
A complicating factor, however, is gene patents. An inventor that determines the function of a gene and isolates it can get a patent, not just on the isolated gene itself, but also on tests detecting the presence of the gene. Consequently, gene patents have the potential to prevent people from learning about their own genetic information, and the potential to hinder doctors in treating their patients.
In this article, I argue that gene patents may violate the Fifth Amendment Due Process Clause. A strong argument can be made that individuals have a fundamental liberty interest in knowledge regarding their own genetic information, to the extent that such information will help them make informed decisions regarding medical treatment. Because gene patents are issued by the government and block individuals from obtaining this necessary information, the Patent Act is unconstitutional. I further discuss how the due process violation may extend beyond gene patents into other patents blocking diagnostic testing.