SCOTUS doesn’t break a sweat with breast-cancer gene case

June 14, 2013

DNA PatentWell, that was easier than I expected.

On Wednesday, the U.S. Supreme Court decided against a biotech firm that had sought to patent the locations and mutations of the BRAC 1 and BRAC 2 genes, which are associated with an increased risk in breast and ovarian cancer in women. A patent would have given the company, Myriad Genetics, control and a lucrative stake in certain types of tests and treatments for these cancers.

(If those names ring any bells, it is because Angelina Jolie discussed them in her bombshell New York Times Op/Ed piece last month.)

As I have written about previously, the application of intellectual property protections to living things is an issue that is increasing in complexity, importance and relevance. This is especially true where human health is concerned.

As the field of medicine develops more and more genetic-based tests, stem cell treatments and the like, our legal system has struggled with how to best reward companies for making important breakthroughs without becoming “Gattaca” or a nightmare George Orwell might have had.

Although other cases have been thorny brambles of ethical, philosophical and moral issues – to say nothing of convoluted legal arguments and theories – my initial reaction to the Myriad Genetics decision is that it was not one of those cases.

What interested me about this case is that it seems to have been decided on a fairly basic premise of patent law. Myriad performed a very useful service by finding these genes, the court wrote, but it did not actually invent anything. Therefore, it has no right to a patent in this circumstance.

(To greatly oversimplify this doctrine, no one could patent, say, a wildflower, because it was not invented by anyone but nature. A new hybrid of rose, however, could most likely be patented, since it came into existence thanks to human ingenuity and intervention.)

As is always the case with these kind of decisions, we certainly have not heard the last word on this issue.