Court says company can patent breast cancer genes

[Valigarmander]

AFP: Myriad can patent breast cancer genes: US court

WASHINGTON — A US federal appeals court on Friday ruled in a landmark case that a Utah-based company is allowed to keep its patent on two genes linked to an inherited form of breast cancer.

The ruling overturns a lower court's decision and allows Myriad Genetics to maintain its patent on the isolated genes, known as BRCA1 and BRCA2, despite complaints from rights groups who say it creates an unfair monopoly and limits women's health choices.

The US Court of Appeals for the Federal Circuit decided such patents on isolated DNA molecules could be held, in accordance with the "longstanding practice" of the Patent and Trademark Office (PTO), over the past 29 years.

The 2-1 court ruling also said the company cannot patent five broadly framed processes of comparing or analyzing DNA sequences because they were "abstract mental processes."

However, a Myriad spokeswoman said that aspect of the ruling did not hurt the company's ability to test for the isolated genes.

"Our intellectual property position today is no different than before the ACLU even brought this case," Rebecca Chambers, head of investor relations with Myriad, told AFP.

She said the company still has 232 method claims, or steps that explain exactly how to test, "as part of 23 patents which describe how we go about doing the BRAC analysis test that were not even part of this lawsuit."

Backed by pharmaceutical company Eli Lilly, Myriad obtained US patents in the mid-1990s on two genes -- BRCA1 and BRCA2 -- strongly associated with hereditary forms of breast and ovarian cancer in women.

According to the National Cancer Institute, 12 percent of women in the general population will develop breast cancer in their lifetimes, compared to 60 percent of women who have inherited a mutation in BRCA1 or BRCA2.

With ovarian cancer, 1.4 percent of women may be diagnosed in their lifetimes but the number rises to 15-40 percent of women with the BRCA1 or BRCA2 mutation.

The patents held by Myriad mean the company owns the "exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad," the American Civil Liberties Union said in a statement.

A key complaint in the lawsuit, was filed in 2009 by a coalition of patient advocacy and medical groups represented by the ACLU, was that the company wielded too much control over the tests and costs.

The plaintiffs had argued that the company was claiming an "illegal monopoly over products of nature, laws of nature and/or natural phenomena, and abstract ideas or basic human knowledge or thought," the ACLU said in a statement.

ACLU lawyer Sandra Park told AFP: "Myriad's monopoly on the BRCA genes makes it impossible for women to access alternate tests or get a comprehensive second opinion about their results. It also allows Myriad to charge a high price for its tests."

The ACLU was consulting with its clients and would make a decision soon about whether to appeal to the full 12-member court of appeals for the federal circuit or to bring the matter before the Supreme Court, she said.

Analyst Robert Cook-Deegan of the Institute for Genome Sciences and Policy at Duke University in North Carolina, said he expected the legal battle would continue over whether human DNA is something that can be patented and owned.

"This is probably not the last stage in this game," he said. "The fact that all three judges have given very different lines of reasoning does suggest to me that there is going to be another round to go here."

If the matter reaches the Supreme Court, he said the outcome would be "very unpredictable."

Biotech companies first began patenting genes and genetic material in the 1980s. More than 20 percent of the 24,000 human gene patents granted since then have been in the United States.

A gene inside the human body cannot be patented. But once it is identified, removed and isolated, a company can apply for exclusive rights to exploit it for commercial purposes.

Only a handful of countries -- including Brazil and Chile -- do not allow patents on genes in any form.

GOD BLESS AMERICA

[Kil'jaeden]

I was under the impression that patents were for something you created. Genes are not the creation of any company or person, and no one should be able to do anything to obstruct cancer researchers.

If this can be patented, basically on the assertion that they should own it, then what is to stop me from going to the patent office right now with a patent on "the mechanism by which seeds sprout". I now own all the rights to every plant everywhere (on a technicality), instant fortune.

But, in this country I guess that would be fine. If you wanted to stir up some opposition, you would have to convince people that owning genes is blasphemy, so that they would dither and fight over it like they do other less important things.

[Vgfian]

Dat's stoopeed.

[Robotazy]

Could they at least sue Breast Cancer for infringing on their patent?

I'd be in support of them.