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  • Writer's pictureKirk Hartley

SCOTUS Unanimously Rejects “Patent Think” – Gene Patents Rejected for BRCA Genes

SCOTUS is often fractured these days, but yesterday managed to unanimously and correctly reject patents on genes in the Myriad case. Why? Because a gene patent simply describes a law of nature, which is the normal sequence of nucleotides in a particular gene.

Happily, the ruling ends Myriad’s undeserved claim to a monopoly on sequencing the BRCA genes that create material risks for breast and ovarian cancer. Why would anyone say the patent was not deserved? Because, as one scientist explained, Myriad was merely the entity that put the very last brick in the wall after years of intense, international BRCA gene research by many researchers and groups. The history of the search for the BRCA genes is described in detail in the well told story: Breakthrough: The Race to Find The Breast Cancer Gene. One suspects that other BRCA researchers (such as Mary-Claire King) are now feeling better about the intersections between law and science. James Watson (of DNA fame) probably also feels better as to science and law – he personally wrote a brief to SCOTUS on the issue.

Certainly the ruling is great news for the free flow of information (such as PLoS), and for anyone facing cancer and other diseases that are or may be caused by genetic mutations. I cheered when Judge Sweet first exercised the awesome power of a federal district judge as he enjoined Mryiad’s patent claims,  and this weekend will drink a toast to the challengers, Judge Sweet and SCOTUS (but not the Federal Circuit or the patent zealots). Kudos to the ACLU and its teammates for bringing the case.

The ACLU’s page includes a string of quotes from happy scientists and persons who have been through cancer. Here are a few:

“Runi Limary, breast cancer survivor:

I’m speechless! This is a monumental day for me and for everyone that has a known or suspected inherited risk of breast and ovarian cancer. This opens the door for researchers and access to testing which can potentially save lives. My test result showed that I have a variant of uncertain significance, so I do not know if I am BRCA positive or not. Everyone deserves the right to truly know if they have the BRCA mutation. The Supreme Court’s decision today is a giant step in the right direction.

Roger D. Klein, MD, JD, Chair, Association for Molecular Pathology (AMP) Professional Relations Committee:

AMP is very pleased with the Supreme Court’s decision in the case. The Court’s decision that human genes are not patentable is a great step forward in for the field of molecular pathology, for genomic science, and most important for our patients. We look forward to exciting future advancements in diagnostic testing and therapeutics that will accrue to the benefit of our patients and our field.

Ellen Matloff, MS, Director of Cancer Genetic Counseling:

Today will go down in the history books as one of the most important days in the evolution of genetic testing and personalized medicine. Because of the SCOTUS ruling today, genetic testing for many diseases will be a reality for our children, and our children’s children. Because of this ruling, the promise of better treatments for our patients is truly possible.”

More broadly, the Myriad decision provides a lesson about the litigation industry. Some people claim or think there is a right to patent pretty much anything, and even now are barking that SCOTUS does not “get” all the nuance and brilliance of “patent think.”  It’s part of why the US and the EU now have some courts full of patent litigation, and “patent thickets.”  It’s also part of why SCOTUS keeps reversing the Federal Circuit.  It’s part of why Judge Posner last year chided Apple and Motorola for patent silliness. One might observe that it’s hard to feel much sympathy for businesses which themselves are patent happy but then complain bitterly when sued by patent trolls, now known as non-practicing entities. As with many types of litigation, both real and imaginary battle lines and issues are drawn, redrawn and spun, with self-interest driving the drawing.

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