Myriad Genetics Inc. has the right to patent two genes linked to breast and ovarian cancers, according to a federal appeals court. The Supreme Court asked the U.S. Court of Appeals for the Federal Circuit to revisit the case in light of its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.
Ultimately, the Supreme Court’s controversial decision about the right to patent observations about natural phenomena did not appear to sway the court against patentability in this case. The court concluded, “Permitting patents on isolated genes does not pre-empt a law of nature.”
Judge Alan Lourie, who authored the majority opinion, emphasized that isolated human genes can be patented because the process of extracting and isolating a gene from the human body renders the gene chemically distinct from how it occurs naturally. As the court stated in the majority opinion, “Everything and everyone comes from nature, following its laws, but the compositions here are not natural products. They are the products of man, albeit following, as all materials do, laws of nature.”
The court did acknowledge critics who raised concerns about the ability to patent genes. Judge Kimberly Moore noted in her concurring opinion that the Myriad patents “raise substantial moral and ethical issues related to awarding a property right to isolated portions of human DNA.” However, she also conceded that any patent restrictions must be left to Congress, not the courts.
This case may be headed to the U.S. Supreme Court, so I encourage you to check back for updates.
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