Thursday, June 13, 2013

Free Genes - SCOTUS strikes down Myriad

The SCOUTUS blog is reporting the Supreme Court has struck down Myriad Genetic's patent claim on two human genes - BRCA1 and BRCA2.

The decision is being called  a compromise by some news sources but the crux of the ruling is this...
We merely hold that genes and the information they encode are not patent eligible under §101 simply because they have been isolated from the surrounding genetic material.
I am sure the lawyers for Myriad are scrambling to write new patents with slightly different wording to emphasize "cDNA" (which the court struggles with defining; in some instances they call it complimentary DNA in others composite DNA). However, it will be difficult overcome the following language in the present decision.
If the patents depended upon the creation of a unique molecule, then a would-be infringer could arguably avoid at least Myriad’s patent claims on entire genes by isolating a DNA sequence that included both the BRCA1 or BRCA2 gene and one additional nucleotide pair. Such a molecule would not be chemically identical to the molecule “invented” by Myriad. But Myriad obviously would resist that outcome because its claim is concerned primarily with the information contained in the genetic sequence, not with the specific chemical composition of a particular molecule.

Justice Clarence Thomas wrote the ruling and there is a one paragraph opinion by Justice Scalia partially affirming the ruling.

Read the entire ruling here. (It is only 18 pages long)

This decision sets the "product-of-nature" precedent for the patent eligibility of all naturally occurring human genes. As I currently work as a biochemist in a plant biology lab I am curious to see if this applies to plant genes.

It is not clear whether cDNA copied from naturally occurring templates (human DNA) is patentable or just synthetic cDNA.

I will update this post as I learn more about the Supreme Court's ruling.
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