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High Court to Address Whether Genes Can Be Patented

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by Publius
Posted December 03, 2012, 5:06 PM

Bloomberg Businessweek reports:

The U.S. Supreme Court agreed to consider whether human genes can be patented, taking up an issue that has split the medical community and will shape the future of personalized health care and the biotechnology industry.

The justices yesterday said they will hear a challenge to Myriad Genetics Inc. (MYGN)’s patents on genetic material used in tests for breast and ovarian cancer. Doctors, researchers and patients are opposing the patents, arguing that Myriad’s monopoly over the genes is blocking clinical testing and research.

“Myriad and other gene patent holders have gained the right to exclude the rest of the scientific community from examining the naturally occurring genes of every person in the United States,” the group argued in its appeal, filed by the American Civil Liberties Union.

Biotechnology companies say they have been getting patents on genes for 30 years -- and can’t attract investment dollars unless they can protect their research from competitors. A study published in 2005 by Science magazine found that 20 percent of human genes had some level of patent protection.

Any move to change that system, “particularly with the deeply settled reliance interests of the technology and investing communities at stake, should be addressed to Congress, not the courts,” Salt Lake City-based Myriad argued in court papers that urged rejection of the appeal.

The nation’s highest court will hear arguments, probably in March, and rule by the end of June.

The central legal question is whether isolated DNA -- genetic coding that has been removed from the body and separated from other material -- is a product of nature and thus ineligible for patent protection. In largely backing Myriad’s patents, the U.S. Court of Appeals for the Federal Circuit said isolated DNA could be patented.

“The isolated DNA molecules before us are not found in nature,” Circuit Judge Alan Lourie wrote. “They are obtained in the laboratory and are man-made, the product of human ingenuity. While they are prepared from products of nature, so is every other composition of matter.”

Genes are encoded strands of nucleotides in different sequences that are responsible for inherited traits. In isolating genes, Myriad strips out unneeded information to home in on aspects that determine whether a person has a higher risk of breast and ovarian cancer.

The challengers say isolated DNA is identical to the coding that exists naturally in the body. . . .

 

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