Are Human Genes Patentable?

The U.S. Supreme Court had agreed to consider whether human genes may be patented. The case, Association of Molecular Pathology v. Myriad Genetics, involves specific genes linked to an increase risk of ovarian and breast cancer.

The question before the Supreme Court is whether isolated genes are “products of nature” that are ineligible for patent protection or products of human intervention and ingenuity. Not surprisingly, the issue elicits strong opinions on both sides of the argument.

Myriad argues that the isolated genes “were created by humans, do not occur in nature and have new and significant utilities not found in nature.” Meanwhile, the plaintiffs, who are supported by groups like the American Medical Association, the National Breast Cancer Foundation, and the March of Dimes Foundation, argue that the patents will hamper scientific research and restrict access to medical care. “Myriad and other gene patent holders have gained the right to exclude the rest of the scientific community from examining the naturally occurring genes of every person in the United States,” the plaintiffs argued in their petition to the Court.

Another question for the Court is whether the U.S. Court of Appeals for the Federal Circuit’s decision to uphold Myriad’s patent claims conflicts with its ruling in Mayo Collaborative Servs. v. Prometheus Labs., Inc. a decision that arguably raised the bar on the amount of intervention needed to withstand legal scrutiny.

However, even though the case was remanded to consider the impact of Prometheus, the federal appeals court did not alter its decision. “The isolated DNA molecules before us are not found in nature,” Judge Alan D. Lourie wrote. “They are obtained in the laboratory and are man-made, the product of human ingenuity.”

However, James Watson, one of the discoverers of the structure of DNA, argued in a brief submitted to the Court that DNA conveys special genetic information, that human genetic information should not be the private property of anyone, and that developing a patent thicket of gene sequences could prevent easy commercialization of genetic diagnostics.

Now, the Supreme Court will make the final decision in yet another pivotal case in the field of medical genetics. I will be closely monitoring this case and will provide updates as they become available.

How Can I Help?

Only man made thing are eligible for patent protection.  If you have an idea and need help protecting it by preparing and filing a patent, or you know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

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