At oral argument in Association for Molecular Pathology v. Myriad Genetics, the U.S. Supreme Court recently grappled with the question of whether human genes are patentable. Justice Stephen Breyer seemed to capture the justices’ sentiment in the lively argument session: "The patent law is filled with uneasy compromises." The compromises that the justices choose will affect the future work of the U.S. Patent and Trademark Office (PTO) and shape the path of genetic research in the future.

Background

Myriad Genetics Inc. obtained patents for the two human genes that correspond to the increased risk of breast and ovarian cancers, dubbed BRCA1 and BRCA2. Myriad argued that, by isolating BRCA1 and BRCA2, it created something patentable and separate from the gene as it appeared when it was still attached to the DNA sequence in the human body. Researchers, physicians, geneticists, breast cancer organizations and other health care providers vehemently opposed the patentability of BRCA1 and BRCA2, arguing that the patents issued for these two genes covered "products and laws of nature." In challenging the patents in the U.S. District Court for the Southern District of New York, the plaintiffs alleged that the effect of the patents for the genes would be to "pre-empt scientific inquiry and medical care to the detriment of patients’ health and scientific advancement," a pre-emption that presented a constitutional violation.

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