should genes be patentable, but it seems that we maybe have lost that one (sadly)
Actually, it's the same issue, since genes are information structures which are processed by the cell. Consequently, genes are software, and consequently are mathematics. The fact that we don't yet understand in detail the mechanisms by which the cell processes the information structures is irrelevant.
If you can't patent software because it is mathematics, then you can't patent genes because they are software.