By Daniel Fisher
Forbes staff
10/30/12
Myriad technicians at work. (Image credit: AFP/Getty
Images via @daylife)
The U.S. Supreme Court agreed to hear, for a second time, a lawsuit
challenging patents held by Myriad Genetics on
human genes implicated in breast cancer.
The court, in an order today, said it would consider only the question of
whether human genes can be patented, meaning it plans to dive straight into one
of the most contentious — and elusive — questions in patent law, which is the
difference between an invention and a natural phenomena. Opponents of the
patents say they prevent researchers from even examining naturally occurring
genetic material that companies have patented. Supporters say the law allows
patents on any process that isolates a valuable substance, even if it’s
naturally occurring, citing industrial processes to create useful products out
of hydrocarbons and plant material.
This will be the second trip to the Supreme Court for the Myriad case, which
the high court sent back to the Court of Appeals for the Federal Circuit in Washington in March for
reconsideration after it issued a decision narrowing the scope of allowable
patents. The D.C. Circuit upheld
the patent again in August, in what might be seen as a direct challenge to
the high court’s interpretation of patent law. In its order accepting the case
again, the court said it would limit both sides to the simple, but confounding,
question of whether human genes can be patented.
The case pits Salt
Lake City-based Myriad against researchers and critics who said Myriad’s
patented on the BRCA genes found in breast tumors hindered research into the
deadly disease. Myriad lawyers have sent threatening letters to the University of
Pennsylvania and others, urging researchers isolating those genes to desist
or pay royalties. The ACLU joined with the Association for Molecular Pathology
and other groups in urging the court to declare such purified snippets of DNA as
unpatentable.
Some patent lawyers — and two of the three judges on the D.C. Circuit —
believe the case presents nothing more than an old dispute over whether “laws of
nature” can be patented. Given the amount of work involved in actually isolating
genes from the much larger DNA molecule transforms them into something useful,
the majority said, just like any other industrial process based on naturally
occurring compounds. The refining industry has thousands of patents on processes
that revolve around extracting naturally occurring hydrocarbon molecules, for
example; it’s the difficulty of creating hydrocarbons any other way that makes
crude oil so valuable.
Opponents of human genes say such patents hinder research. They seem to have
support on the Supreme Court, which has taken a skeptical view of overbroad
patents in recent decisions.
Source: Forbes
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