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Decisions, Decisions

In a unanimous decision yesterday, the US Supreme Court ruled in the Association for Molecular Pathology et al. v. Myriad Genetics case that human genes are not patent-eligible, though it also said that cDNA is eligible to be patented as it is not naturally occurring. The case centered on the BRCA1 and BRCA2 breast cancer genes.

"Myriad did not create anything," writes Justice Clarence Thomas in the opinion for the court. "To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention."

This ruling, the New Scientist says, is a "mixed blessing" though its effect on medicine may be limited. John Conley, a law professor at the University of North Carolina at Chapel Hill, tells the New Scientist that the ruling is "a referendum on yesterday's problem" as the BRCA and similar patents were to expire soon.

Still, Myriad's cDNA patent claims remain intact. "We believe the Court appropriately upheld our claims on cDNA, and underscored the patent eligibility of our method claims, ensuring strong intellectual property protection for our BRACAnalysis test moving forward," Myriad President and CEO Peter Meldrum says in a statement, according to GenomeWeb Daily News.

However, Stanford University law professor Mark Lemley tells the Nature News Blog that such patents could now be avoided by basing tests on genomic rather than cDNA.

While the court said that cDNA is patent eligible, it noted in a footnote in the ruling that it is not expressing an opinion on "whether cDNA satisfies the other statutory requirements of patentability."

Lemley further says it likely does not because how it is made is commonly known. "Even though cDNA is a new chemical that is patent-eligible, the act of creating it will likely be obvious," he says. "So cDNA may not end up being the subject of valid patents after all."

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