I would think the fellow (Caplan) at the end of the article is correct. You can't patent something that already exists because its there.

"A better argument would be that they were wrong when they granted the patent," he added referring to the patent office.

Caplan said patents are privileges, not "carved in stone." He noted that the defendants may have identified the genes, but didn't actually work on them. So, the government could reverse the patents on the genes.

"It's like trying to patent the moon," he said. "You didn't do anything to create it, just discovered something that already existed. You can't patent things that are publicly available, that anyone can find. You have to create something, make something, do something with the thing."

Spaw