Ruling Upholds Gene Patent in Cancer Test

By ANDREW POLLACK Published: July 29, 2011 NY Times  excerpted

The Court of Appeals for the Federal Circuit, which specializes in patent cases, said that Myriad Genetics was entitled to patents on two human genes used to predict if women have an increased risk of getting breast and ovarian cancer.

The court ruled that DNA isolated from the body was eligible for patents because it was “markedly different” in its chemical structure from DNA that exists inside the chromosomes in the body. As a result, the isolated DNA is not simply a product of nature, which would not be eligible for a patent.

The 2-to-1 decision on the gene patenting issue was also a rejection of arguments made by the Obama administration, which had filed a friend of the court brief arguing that isolated DNA should not be patented. That brief went against the long-standing policy of the United States Patent and Trademark Office to grant such patents.

A lawsuit challenging the patents on the breast cancer risk genes was filed in 2009 by the American Civil Liberties Union and the Public Patent Foundation, acting as the lawyers for various cancer patients, medical researchers and medical societies.

This disgusts me.  The court’s ruling, as I read it, misses the only valid intellectu7al property here which is the discovery NOT BY MYRIAD, that there a sequence in this location that accounts for cancer risk.  If Myriad had made that discovery, identifying the gene and developing a test would have been pretty much automatic.  They would deserve to be rewarded.

Instead, this decision essentially gives industry the fruits of basic science research without making them pay to support that work.