In December 2009, claiming priority from an earlier US patent application filed in December 2008, the Californian direct-to-consumer genetic testing company 23andMe filed US Patent Application Serial No. 12/592950. A Notice of Allowance for this case was issued by the US Patent and Trademark Office in June 2013, and it will issue as US Patent No. 8543339 on 24 September 2013. It contains claims to a computer system and to a computer program, but our focus here is on the patent’s claims to a method for gamete donor selection….
Taken out of “patentese,” what 23andMe is claiming is a method by which prospective donors of ova and/or sperm may be selected so as to increase the likelihood of producing a human baby with characteristics desired by the prospective parents, the selection being based on a computerized comparison of the genotypic data of the egg provider with that of the sperm provider.
The phenotypic characteristics that may be on the users’ (e.g., parents’) “shopping list” can include both disease-related and non–disease-related traits, such as height, eye color, muscle development, personality characteristics, and risks of developing age-related macular degeneration or certain types of cancer.Figure 4 of the patent application lists the following alternative choices: “I prefer a child with”: “longest expected life span”/“least expected life cost of health care”/“least expected cumulative duration of hospitalization.” Figure 6 visualizes a choice between the “offspring’s possible traits” of “0% likely endurance athlete” and “100% likely sprinter.”
Of note, sex is also mentioned as an example of the phenotypic characteristics. 23andMe’s claim is extremely broad insofar as it concerns “selection” for any phenotypic trait, which of course includes polygenetic traits that might be more than a bit difficult to select for; however, in 23andMe’s favor, we must point out that what is claimed is not a cast-iron, fool-proof method guaranteeing that the eventual child will have all the phenotypic traits on the parents’ shopping list, an impossible task, but merely a method of improving the chances that the baby has the “right” characteristics….
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