Gene patenting issue to be addressed by Supreme Court


As regular readers may remember, The “New” Prostate Cancer InfoLink has been keeping an eye on the court case known as the Association for Molecular Pathology v. Myriad Genetics, Inc. The case relates to the rights of the biotechnology industry (or indeed any other organization or individual) to hold patents on human genes and/or their scientific uses.

This is a complex legal case that has (almost inevitably) been winding its way slowly toward the Supreme Court of the United States (SCOTUS) over several years, and has finally, as of last Friday, been accepted for review by that body.

In a brief comment, the Associated Press has stated that, “The justices’ decision will likely resolve an ongoing battle between scientists who believe that genes carrying the secrets of life should not be exploited for commercial gain and companies that argue that a patent is a reward for years of expensive research that moves science forward.”

It would certainly be nice for all concerned if SCOTUS can and does resolve this issue. Our own suspicion is that SCOTUS will find a way to partially resolve the issue related to this specific case, but will try to avoid ruling on precisely what can and can’t be patented.

Those interested in reading more about this issue can look at our last two items on this case (dated February 22 and March 27 this year) or recent articles in The New York Times and on Bloomberg.com.

Obviously this case in not about prostate cancer specifically, but the ramifications of whether and under what circumstances one may be able to hold a patent on a section of nucleic acid that occurs naturally as a part of the human genome and, as such, provides the code for manufacture of a specific biological product does have huge implications for the future diagnosis, prognosis, and treatment of prostate cancers, which we already know to be categorizable into a multiplicity of subtypes.

2 Responses

  1. I think it is unfair for the courts to have to decide whether an isolated human DNA molecule is natually occurring or is a man-made invention or composition, or if the process of isolating the molecule is patent eligible. There is no constitutional issue here. The Constitution gives Congress the right to regulate patents, and it did so when it adopted the Patent Act, many years before a human DNA molecule could be isolated. In my opinion, Congress should step in and resolve the moral, medical, scientific, and property right issues by amending the Patent Act; presumably the amendment will express the public policy choice our society desires (like in which direction we should fall off the fiscal cliff). The nine SCOTUS justices are not supposed to make policy decisions.

  2. Richard:

    That would certainly be a sensible way for Congress to behave, but Congress appears to have lost all interest in being “sensible” these days. (That would require common sense and compromise.)

    In the meantime, it is the responsibility of the Supreme Court to make final decisions about the interpretation of current law (not just what the Constitution may or may not say). No other body has that authority.

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