Supreme Court says natural human genes can't be patented

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NBC News

The Supreme Court ruled unanimously Thursday that natural human genes cannot be patented by companies, but it said that synthetic genetic material can — a mixed ruling for the biotechnology industry.

A naturally occurring piece of DNA is “a product of nature and not patent eligible merely because it has been isolated,” the court said.

The case centered on a Salt Lake City company called Myriad Genetics that was granted patents for isolating two genes, known as BRCA1 and BRCA2, that indicate a higher risk of breast and ovarian cancer. The company now markets tests for those genes.

BRCA1 is the gene carried by actress Angelina Jolie, who chose after a test to have a double mastectomy.

Justices wrestled with whether Myriad’s work was a product of invention or nature. The biotechnology industry warned that a ruling against the company would threaten billions of dollars in investment.

The government has already granted patents on 4,000 human genes, mostly to companies and universities.

An oral argument in April was so deeply technical — introns, exons and messenger RNA were all discussed in detail — that justices and lawyers alike had to grope for everyday analogies.

Gregory Castanias, a lawyer for Myriad, likened the isolation of genes to the creation of a baseball bat, which “doesn’t exist until it’s isolated from a tree.”

“But that’s still the product of human invention,” he said, “to decide where to begin the bat and where to end the bat.”

Doctors and scientists who challenged the patents said that their research had been hindered. The lawyer arguing for them said that Myriad deserved credit for unlocking the secrets of genes — just not a patent.

“One way to address the question presented by this case is: What exactly did Myriad invent?” asked the lawyer, Christopher Hansen of the American Civil Liberties Union. “And the answer is nothing.”

Justices on both sides of the ideological spectrum seemed concerned about whether companies like Myriad would scale back investment in research if they were not rewarded with patents.

“What does Myriad get out of this deal?” Justice Elena Kagan wondered. “Why shouldn’t we worry that Myriad or companies like it will just say, well, you know, we’re not going to do this work anymore?

Solicitor General Donald Verrilli, representing the Obama administration, argued that manipulating a gene into something new might qualify for patent protection, but that isolating what’s already there should not.

The administration has supported a compromise position — allowing patents for synthetically produced genetic material but not natural genes themselves.

The case challenged seven Myriad patents that are set to expire in 2015.

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