Should one be able to patent a gene? An update.

So the Supreme Court listened to oral arguments from both parties in the case of Association for Molecular Pathology v. Myriad Genetics earlier today. While we will not know how the court decides to rule until some time in June this year, there is already an interesting analysis of the reactions of the justices to the oral arguments on the (relatively impartial) SCOTUS blog web site.

As The “New” Prostate Cancer InfoLink has been expecting, the Justices appear to have firmly grasped the distinction between the idea that one should not be able to patent a gene itself (on the grounds that it is a product of nature) but that there may well be excellent arguments for the right to patent unique methods by which to use specific genes once these have been identified and isolated since this requires the creative application of concepts and processes.

Quite how SCOTUS will be able to rule on this case and take full account of this distinction is hard to know at this time, but we have the strong impression that the right to patent a gene itself is not going survive the court’s ruling. We believe that this would be a wise finding because it would leave wide open the issue of “use” patents as opposed to “product of nature” patents. The right to patent an individual use of a gene would then revert to whether the use for which a patent was being sought was “obvious” or not. Whether the law can actually disentangle these closely associated issues is a whole other issue!

2 Responses

  1. On a day when almost every US stock is down, Myriad Genetics is up about 5% this afternoon. That is almost certainly based on the perception that the SCOTUS will uphold the most important of Myriad’s patents. I have no idea whether they will, but some folks are clearly betting on it.

  2. My thoughts were similar to yours, Sitemaster. But we shall see.

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