Sure, some will claim this decision was a legal one, having no relation to philosophy, but such claims betray a complete ignorance about what philosophy is. My book and the writing and speaking I have done on the subject of gene patents ever since have focused upon the ontology of the underlying objects. I have long felt that before we can approach ethical questions we need to clarify what we are dealing with. I did this first for software, then genes, then nanotechnology. While I have taught medical and bio-ethics, the thesis of Who Owns You is not guided by standard bioethical principles, but rather founded upon uncovering the nature of the objects involved in the debate.

Thus, my arguments about the nature of the "commons-by-necessity" and the status of genes as part of that commons confused some who expected typical applied ethics arguments, or legal anti-commons claims. For the past four years, what I have tried to do is show by recourse to basic ontological concepts, that unmodified but merely isolated genes are not different in kind from the genes claimed by Myriad and others as they are found in nature.

In the course of these arguments, the illogic of those who pursued the course of maintaining gene patents as they existed was laid bare, perhaps never more clearly than in debates about the nature of another naturally-occurring product: O₂. When it became clear through those arguments that patent attorneys and others who supported gene patenting must also endorse patenting O₂, the necessity of ontology was also revealed. Despite their claims otherwise, a world in which individual O₂ molecules are distinguished from each other based upon their origins makes little sense ontologically, forget the ethics. One needs to confuse process with product, a basic ontological error, to support such a view. The Supreme Court, whether they realized it or not, sided with sound ontology. Although lacking the language that philosophers use when engaging in ontology, the Supreme Court's opinion makes both logical and ontological sense.

The Court has reasoned that the BRCA mutations claimed in Myriad's patents, even though "isolated" from the surrounding genome, remain "natural phenomena." An explanation for how this is so resides in ontology. In each case, the molecules described by the nucleotide sequences identified are not the result of man's design. They are nature's own products. Similarly, even when synthesized, O₂ is never the product of man's design.  The process of creating isolated BRCA mutations in the lab may well be man-made, but will never result in anything other than a natural product because the product is one designed by evolution, not human ingenuity.

We could call lab-made O₂ or BRCA genes "synthetic natural products," and explain this by understanding that the process of making something cannot be confused with the resulting product. To be non-natural, both the intention of creating the product and the design of the product must come from minds. This is why I am more or less comfortable with the court's holding that cDNA is patent-eligible, because in producing cDNA (when, as the Court notes it does not exactly mirror sequences found in nature), one must combine intention with design.

At one of my recent talks, someone asked why in making my arguments I relied on ontology rather than ethics. My response was that courts are typically unmoved by ethics. This may be surprising, but it is true. The Court's decision in Myriad is about the nature of the underlying objects, not about what is right or wrong. Perhaps there is an ethical dimension to the general prohibition against patenting abstract ideas, natural phenomena, and laws of nature. Or perhaps not. Perhaps this restriction is about the nature of the objects too, as I have claimed when I argue they are simply materially and logically (and thus maybe also ethically) "unencloseable."

But the Court's decision is guided, whether knowingly or not, but an ontology, and one which is coherent if understood as I am describing it. It provides guidance for those who conduct basic research, and those who wish to commercialize inventions. It offers some clarity where the law had deviated from logic. It illustrates that philosophy is not divorced from other subjects, and can indeed be relevant in numerous spheres. Indeed, metaphysics matters a great deal, and we engage in its practice every day to greater or lesser degrees, and sometimes public policy is significantly affected by its improper or proper uses. Philosophers would do well to point out the role of philosophy, as illustrated by the Myriad case and its implications, in the real world, and those who fail to see this as an implementation of philosophical reasoning should review the role and nature of philosophy historically. It really is the meta-science.

And speaking of science, as for the implications of the Court’s holding and reasoning, there is now greater certainty and guidance than before over what is properly patent-eligible, and the bulwark the Court has attempted to erect over time between basic science, whose products belong to the scientific commons, and commerce, which should be free to exploit that commons freely, is even stronger.

Even thought the enabling act for patent and copyright laws allows for patenting new “inventions and discoveries,” the Supreme Court has long excluded “abstract ideas, laws of nature, and natural phenomena” from eligibility. One reason for these exclusions is that patents on these objects of basic research would allow monopolies that prevent inquiry into nature itself, and perhaps even slow innovation downstream as researchers would have to tread more carefully in what they inquire into in the lab. Another reason may be, as I have argued, that the scientific commons cannot be ethically enclosed because it is literally unencloseable.

But setting aside this argument for now, it seems likely that the Myriad decision will spur more innovation and make inquiries proceed more quickly. In the fields of synthetic biology and nanotechnology, patents over natural products that serve as the building blocks of potentially groundbreaking technologies could well have impeded progress in these sciences and their resulting technologies. Now that it is clear that nano-components of these technologies, where they are identical in form to naturally-occurring molecules, cannot be monopolized by patent, basic research should be less legally hazardous to pursue.

As a result, more papers should be published, greater progress should be seen in the basic research, and consequently, more commercialization of truly new combinations, inventive processes, and products, should be expected. The world is safer for unimpeded science to be done, and there is greater predictability about what may be monopolized, and what should remain in the commons.