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The Amazon, Baseball Bats, Chocolate Chip Cookies, and Gene Patents

US Supreme Court Justices heard arguments yesterday regarding whether isolated genes may be patented, and NPR's Nina Totenberg writes that they "seemed skeptical." Turna Ray at Daily Scan sister publication GenomeWeb Daily News notes that "some justices didn't readily buy" the argument from Myriad's lawyer Gregory Castanias that isolated gene sequences are substantially different from native DNA.

"I find it very, very difficult to conceive how you can patent a sequential numbering system by nature, in the same way that I have a problem in thinking that someone could get a patent on the computer binary code merely because they throw a certain number of things on a piece of paper in a certain order," Justice Sonia Sotomayor said. "I always thought that to have a patent you had to take something and add to what nature does."

The justices turned to a number of analogies to discuss the case. Justice Samuel Alito brought up a scenario in which a plant in the Amazon was found to have medicinal value, saying that extraction and concentration of its compounds should be patentable, the Wall Street Journal reports. Sotomayor, by contrast, likened the situation to a chocolate chip cookie — the cookie itself might be able to be patented but the natural ingredients making it up like flour and sugar could not, according to NPR. Castanias, according to the Wall Street Journal, called that analogy "really simplistic."

He, instead, turned to the idea of a baseball bat. "A baseball bat doesn't exist until it's isolated from a tree," he said. "But that's still the product of human invention to decide where to begin the bat and where to end the bat."

However, Chief Justice John Roberts disagreed with that analogy, and called Myriad's approach to isolating DNA sequencing "snipping," the Journal adds. ""The baseball bat is quite different; you don't look at a tree and say, 'Well, I've cut the branch here and cut it here, and all of a sudden I've got a baseball bat.' You have to invent it," he said, according to NPR.

Additionally, the justices questioned how a ruling in this case would affect incentives to perform genetic research. "On the one hand, we do want people to invent; on the other hand, we're very worried about them tying up ... a thing that itself could be used for further advance," Justice Stephen Breyer said, according to NPR. He added that a new process to extract sap from the medicinal Amazonian plant could be patented but "what you can't patent is the sap itself."

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