Supremes Raise Baseball and Chocolate Chips in 'Jewish' Cancer Gene Case

Top Court Seems Wary of Company's DNA Patent Claim

nate lavey

By Reuters

Published April 16, 2013, issue of April 19, 2013.

The Supreme Court justices on Monday signaled reluctance to issue too broad a ruling about patents on human genes, and some indicated they might seek a compromise distinguishing between types of genetic material.

The biotechnology industry has warned that an expansive ruling against Myriad Genetics Inc could threaten billions of dollars of investment.

In weighing the question of whether any human genes can ever be patented - meaning the holders have exclusive rights to their intellectual property for a defined period - the nine justices asked tough questions about isolated genes that Myriad holds patents for.

The case involves the BRCA gene mutation, which is relatively common among Ashkenazi women and can cause breast cancer.

But the justices also appeared to be inclined to draw a line between synthetically produced genetic material and natural genes.

A court ruling along those lines, suggested by the Obama administration, would have less impact on Myriad. Some of the latest research using human genes involves a synthetic form of DNA called recombinant DNA, or rDNA.

Shares of Myriad were up $1.43 or 5.4 percent at $27.53 on midday trading on the Nasdaq. The Standard & Poor’s 500 Index was down 1 percent.

The Myriad patents in dispute will all expire by 2015. A ruling is due by the end of June this year.

In probing the limits of what can be patented, the justices cited a wide range of products in raising hypothetical questions, including chocolate-chip cookies and baseball bats.

A group of medical researchers, associations and patients say human genes, including synthetically produced material, should not be patented. They sued in 2009, challenging seven patents owned by or licensed to Myriad on two human genes linked to breast and ovarian cancer. A federal judge said the patents were invalid. An appeals court overruled that decision, and the case landed at the Supreme Court.

Under the federal Patent Act, an inventor can obtain a patent on various new processes and products but “laws of nature, natural phenomena and abstract ideas” are not patentable. The broad legal question is whether the genes Myriad patented, called BRCA1 and BRCA2, are a product of nature. The appeals court said they were not.

The U.S. Patent and Trademark Office has granted patents on at least 4,000 human genes to companies, universities and others that have discovered and decoded them.



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