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Thursday, June 13, 2013

Reactions From Both Sides On Gene Patent Ruling

An American flag flies in front of the Supreme Court in Washington. (Alex Brandon/AP)

An American flag flies in front of the Supreme Court in Washington. (Alex Brandon/AP)

The Supreme Court ruled Thursday that companies cannot patent parts of naturally-occurring human genes, a decision with the potential to profoundly affect the emerging and lucrative medical and biotechnology industries.

The high court’s unanimous judgment reverses three decades of patent awards by government officials.

“I’m so relieved that after such a long process that the final decision has been the right decision.”
– Lisbeth Ceriani,
plaintiff

It throws out patents held by Salt Lake City-based Myriad Genetics Inc. on an increasingly popular breast cancer test brought into the public eye recently by actress Angelina Jolie’s revelation that she had a double mastectomy because of one of the genes involved in this case.

“This is a beautifully simple opinion — it was such a pleasure to read and it’s very common sense,” legal expert Emily Bazelon told Here & Now’s Meghna Chakrabarti. “Basically, if you find something in nature and you don’t do anything to it other than discover it, you don’t get to own it. You can’t have a patent of it. In other words, there’s no act of invention in the pure discovery.”

Plaintiff’s reaction

Lisbeth Ceriani is a breast cancer survivor and one of the plaintiffs in the case.

She got involved in the case after she was unable to get insurance coverage for the breast cancer gene mutation tests BRCA1 and BRCA2 because the patent owner, Myriad Genetics, had not contracted with her insurance company.

“I’m so relieved that after such a long process that the final decision has been the right decision, and our genes are no longer being held hostage by a private company,” Ceriani told Here & Now. “They were patenting the actual gene so that no other doctor or researcher was allowed to look at my gene out of my body, except for the folks at Myriad. Now they can go on to develop all sorts of different tests to test the same gene and find out different therapies using that gene that they were not allowed to do for the past decade while the patents were in place.”

“In truth though, these molecules were actually created in the lab just like cDNA.”
– Greg Castanias,
represents Myriad

Myriad Genetics’ perspective

Greg Castanias is an intellectual property lawyer with Jones Day and was part of the Myriad Genetics legal team.

“Obviously we’re disappointed,” Castanias told Here & Now. “What the court did in making that ruling was to not appreciate either the inventive process or the contribution that Myriad’s inventors made to society. I think the notion is somehow or another that these claims to isolated DNA are … DNA that is in our body. And that’s certainly the way Justice Thomas’s opinion looked at it. In truth though, these molecules were actually created in the lab just like cDNA.”

The court did rule that synthetically created DNA, known as cDNA, can be patented “because it is not naturally occurring,” according to the decision written by Justice Thomas.

More rulings to come

With thousands of existing patents now in question due to Thursday’s ruling, there will be more court cases to come, according to Bazelon.

“The first tasks for the lower courts will be to figure out, OK, are those patents just like, or enough like, Myriad Genetics’ patent that they’re not allowed anymore, or is there something else — some act of invention going on in them that makes them different,” Bazelon said.

The Associated Press contributed reporting to this article.

Guests:

  • Emily Bazelon, senior editor for Slate magazine and senior research fellow at Yale Law School.
  • Lisbeth Ceriani, breast cancer survivor and one of the plaintiffs in the case.
  • Greg Castanias, intellectual property lawyer representing Myriad.

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  • Dan M

    I’m not sure this ruling means anything. A biotech company cannot patent a natural gene, but they can patent cDNA produced in the lab from that gene. I don’t see much difference there. It is a stretch to consider cDNA as some sort of invention.  cDNA is simply a DNA form of a mature RNA which is produced naturally in cells. In fact, it is that mature RNA is necessary for the gene to do its job–to code for a protein. Seems to me this is a big plus for biotech companies, as it hasn’t lost anything, all the while appeasing the general public who doesn’t really understand what has been done.

    • Truth Seeker

      Well, this might have to go back to the SC at some point in time. That could also go down with a 5-4 decision too.

  • Kali

    It’ll just cut down on biotech companies from pouring money into gene research.  If you can’t make money off of your research, then there’s not much point to it.  Saving lives is much more exciting when there’s a nice payout involved.

  • skander

    Folks on both sides are approaching this argument from a very technologically biased point of view, as if anyone invented life itself. To say that a gene of any sort is patentable is to say: I have patented a color, I call it Light Blue.” Who do you sue, the sky? Can you get the courts to back you up and say that all users of Light Blue are in violation of your patent retroactive to the dawn of time?
    Daguerre, upon the invention of Photography, was given a lifetime pension by France, and his invention universally distributed for the betterment of all mankind. Can you even imagine what the world would be like if he was so greedy as to keep it to himself, and perhaps lose it?
    If a gene is created which can help feed millions, halt disease, or end suffering, it is imperative that it be immediately made public property. Your efforts in R&D will be compensated by the U.S.D.A, or F.D.A. and all who wish to avail themselves of it, can freely do so without penalty. But because we condone those who profiteer on hunger and pain, we invite rebellious violence, and is part of why half the world hates the United States.

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