February 3, 2010

'Law of Nature' or 'Invention'? Court Mulls Patentability of Genes

by Mark Fass
New York Law Journal

A federal judge in Manhattan heard arguments Tuesday in a lawsuit questioning the patentability of human genes.

The case, Association for Molecular Pathology v. U.S. Patent and Trademark Office, 09-civ-4515, centers on whether genes, once separated from the lengthy DNA sequence, are sufficiently "new and useful" to be deemed patentable under federal patent law.

The genes in dispute in the present case are BRCA1 and BRCA2, two genes closely associated with breast and ovarian cancer.

At Tuesday's hearing before Southern District Judge Robert W. Sweet regarding the two sides' motions for summary judgment, the lead attorney for the plaintiffs, Christopher Hansen of the American Civil Liberties Union, argued that the defendants, Myriad Genetics and the University of Utah Research Foundation, had patented the human body and "a law of nature."

"They uncovered a law of nature. It is very much to their credit," Hansen said. "But uncovering a law of nature is not creating an invention. Uncovering a law of nature is not patentable."

Hansen compared isolated human genes to blood that has been removed from the body or a carburetor that has been pulled from an engine. Their chemistry may be altered, he said, but only in incidental ways.

Brian M. Poissant of Jones Day appeared on behalf of Myriad Genetics and the University of Utah.

He urged the court to ignore public policy and the plaintiffs' "atmospherics," and focus on Section 101 of the U.S. Patent Acts, which defines as patentable "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement."

Read the complete story (Some news sites require registration)