Court versus Constitution?

Wake Forest University's Simone Rose says that after reading the Federal Circuit's majority and concurring opinions regarding the Myriad Genetics BRCA gene patents case, "one question immediately came to mind. ... How can the court allow chemical differences to supersede biological equivalence when the specific utility of the invention, namely detecting mutations linked to breast and ovarian cancer, depends on biological identity?" In her piece in the Huffington Post, Rose — professor of law at Wake Forest and a former registered patent attorney — says that "although promoting innovation is a laudable goal, the Federal Circuit's broadening of what constitutes patent-eligible subject matter missed the bigger Constitutional target." She says that patenting isolated genes and gene sequences "prevents access to these basic research tools during the term of the patent," and thus "impedes rather than promotes progress and is therefore in direct violation of the IP [Intellectual Property] clause" of the US Constitution, which "empowers Congress to grant exclusive rights, such as patents and copyrights, for 'limited timed times to promote Progress of Science and the Useful Arts.'" Rose says she hopes the reviewing federal court will "interpret the Patent Act's subject matter limitation to exclude the BRCA genes as patent-ineligible products of nature," while playing its role as "keeper of the Constitution." Only should the court do so, she says, "can we begin the appropriate legislative dialogue on drafting a 'progress-promoting' isolated bioproducts statute which properly balances access against innovation."