Supreme Court rules that genes may not be patented

Posted 13 June 2013 by Matt Young

But they also ruled that cDNA sequences may be patented. The argument is something like this: DNA is found in nature, hence not patentable. But cDNA, or DNA stripped of its introns, is not found in nature, hence potentially patentable. See Adam Liptak's article in The New York Times. The outcome means (or seems to mean) that Myriad Genetics will no longer have a monopoly on testing for the breast-cancer genes, BRCA-1 and -2. Liptak suggests that competition will now drive the cost of such tests down from the present price of around $3000. Myriad's stock nevertheless had gone up at the time of Liptak's report.

8 Comments

https://me.yahoo.com/a/JxVN0eQFqtmgoY7wC1cZM44ET_iAanxHQmLgYgX_Zhn8#57cad · 13 June 2013

Seems anti-Designer to me, invoking "nature" without bringing in the possibility of supernatural intervention.

Will the persecutions never end?

Glen Davidson

Mike Clinch · 13 June 2013

Even worse for the ID crowd - Justice Thomas never used the phrases "created", "designed" or "inspired" for the natural DNA, and didn't reassign the patents to God. Scalia finally admitted he was ignorant of biology, which is another win.

Tenncrain · 13 June 2013

As a quick side note, anybody know when the Ohio Supreme Court will render its decision on the Freshwater case?

tomh · 13 June 2013

The stock originally was up but closed down about 5% as more and more companies announced they would offer the breast cancer testing. Myriad owns a number of other patents that aren't affected, but the bulk of their income comes from that one test.

harold · 14 June 2013

Good decision, although the cDNA thing is annoying. For those who aren't aware, cDNA is simply generated from mRNA, most commonly by using reverse transcriptase to catalyze the generation of DNA sequences that are complimentary to mRNA sequences in a sample.

"Patenting" a cDNA sequence would be absurd, and could easily lead to a similar trial in the future. For example, someone could claim that if a certain mRNA is expressed in any sample of cells, everyone who wants to generate cDNA from such a sample of cells is restricted from using commonly available published methods and required to use some hyper-overpriced kit to do so.

What should be patentable are unique products and methods - an antibody preparation that is uniquely developed, a commercialized method of very efficiently generating cDNA, things like that.

Most likely the court simply couldn't understand what cDNA actually is. Alternately, they wanted to avoid public outcry, but leave a loophole so that some future well-connected business can gouge the public for years. Remember, Myriad is merely stopped from using the patent going forward. The fortunes already made are not affected.

harold · 14 June 2013

harold said: Good decision, although the cDNA thing is annoying. For those who aren't aware, cDNA is simply generated from mRNA, most commonly by using reverse transcriptase to catalyze the generation of DNA sequences that are complimentary to mRNA sequences in a sample. "Patenting" a cDNA sequence would be absurd, and could easily lead to a similar trial in the future. For example, someone could claim that if a certain mRNA is expressed in any sample of cells, everyone who wants to generate cDNA from such a sample of cells is restricted from using commonly available published methods and required to use some hyper-overpriced kit to do so. What should be patentable are unique products and methods - an antibody preparation that is uniquely developed, a commercialized method of very efficiently generating cDNA, things like that. Most likely the court simply couldn't understand what cDNA actually is. Alternately, they wanted to avoid public outcry, but leave a loophole so that some future well-connected business can gouge the public for years. Remember, Myriad is merely stopped from using the patent going forward. The fortunes already made are not affected.

For example, suppose a variant allele that has not yet been discovered is found to be linked to, say, autism, obesity, prostate cancer, or some other "commercially valuable" medical problem. Suppose someone merely patents the cDNA sequence representing the DNA version of the mRNA of the gene. Certainly, tests for the allele that don't involve cDNA would easily be devised, but if determining gene expression level or something similar were to become important, being able to generate and measure cDNA could be important. So it would simply be a slightly more subtle version of exactly the situation that the court ostensibly ruled against. Someone will have patented what amounts to a natural product. cDNA is an "invented" product in the sense that steamed broccoli is. You start with a common natural product - broccoli or mRNA - and you do a common thing to it - either steam it or use reverse transcriptase related methods to generate a cDNA library, respectively. Then "patent" the results. People are probably rushing to patent cDNA libraries that were formerly widely available for research, as we speak. This does stop the specific abuse related to Myriad, but leaves plenty of room for future headaches.

Richard B. Hoppe · 14 June 2013

Tenncrain said: As a quick side note, anybody know when the Ohio Supreme Court will render its decision on the Freshwater case?

June or July is the best estimate--the Court doesn't foreshadow decision dates, and I can't infer much of anything from the announcements of decisions here. I poked around some but didn't find when those cases had oral arguments, and anyway there's no guarantee that the decision schedule is related to the oral arguments schedule.

Matt Young · 14 June 2013

The Los Angeles Times today reports that competitors to Myriad's test have already been announced, as well as other tests that apparently are considered feasible now that the relevant genes cannot be patented. A cardiologist who works on genetic diseases told the Times that

he received two slickly produced marketing emails from laboratories announcing they were jumping into the niche of sequencing the [BRCA] genes. "They obviously had it ready to go," he said.