Jun 15, 2013 · 2 minutes

In a 9-0 decision, the Supreme Court ruled Wednesday that naturally-occurring human DNA cannot be patented, invalidating patents awarded to Myriad Genetics for the BRCA1 and BRCA2 genes. These genes are used to help doctors assess breast cancer risk and were thrust into the public eye last month when Angelina Jolie underwent a double masectomy after testing positive for both mutations. Siding with the Association of Molecular Biologists, the American Civil Liberties Union and other plaintiffs, Justice Clarence Thomas broke the case down simply: "Myriad did not create anything."

In the wake of the decision, however, many observers are wondering what this might mean for patents on plant genes. Genetically-modified crops have taken center-stage in a national debate over whether or not to label GMO foods (Connecticut voted yes, California voted no). And just last month, the Supreme Court ruled in favor of the agribusiness company Monsanto in a patent infringement case involving an Indiana farmer who planted some of Monsanto's genetically-modified soybeans without purchasing them. So why did the court rule in favor of Monsanto's gene patents but against Myriad's (Monsanto-related conspiracy theories notwithstanding)?

In part, it's because the Myriad case dealt with human genes, not plant genes. But there's another distinction at play here: Unlike Myriad, Monsanto did create something.

The BRCA genes occur naturally in humans. Myriad simply patented them and developed a method for using them to assess breast cancer risk (the patent for the method, by the way, still holds up, says the Supreme Court). But Monsanto's soybeans were genetically-engineered using material from other organisms, in order to make them resistant to the weed killer Roundup. And if the courts do someday extend this ruling to plants, the "synthetic DNA" used in Monsanto's soybeans will likely still be patentable.

But just because a crop was developed with the assistance of laboratory techniques, that doesn’t necessarily make it “synthetic.” Dr. Reed Sorenson, a post-doctoral scholar at UC-Riverside's Department of Botany and Plant Sciences, works in a lab that researches a rice gene that helps make crops resistant to floods. It occurs naturally in India, but not in Asia. Using a breeding technique known as marker-assisted backcrossing, rice researchers have been able to transfer those flood-resistant properties to rice varieties native to Asia and other regions where flooding is also a major problem.

That rice gene, known as Sub1, is not patented. But if it was, would a court uphold its patent? "That's kind of the question that needs to be answered," Sorenson says, emphasizing that this ruling raises as many questions as it does answers. But to be safe, he would advise against companies trying to patent genetic material that can be found in a normal genome, even if it was developed in a lab. "If I was a company I would base my decisions on this and not try to patent something that goes against this ruling."

There are many other novel methods for crop development that may fall in a legal gray area. But any plants that combine DNA from multiple species would almost certainly fall under the definition of "synthetic," and thus be deemed patentable. So while this week's ruling, if extended to plants, could potentially invalidate some patents, it's not likely to affect the so-called "Frankenfoods" that anti-GMO activists rail so vehemently against.

[Image via John Goode]