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Gene Patents Limited



The U.S. Supreme Court has issued another important decision on the limits of intellectual property law this week. Specifically, it now holds that pieces of the human genome are not patentable when they are identical to the naturally occurring segment. "[A] naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated."

The method of isolation would presumably be patentable -- but that wasn't the question before the court.

SCOTUS has been returning to its efforts to set limits on the reach of patent law on a fairly regular basis of late. For example, there was the Bilski decision against the patenting of abstract ideas. That was three years ago.

 Or a patent decision concerning Stanford University and Roche. Here is my blogged discussion of that from two years ago.

Or the Prometheus decision, from last year.

This week adds to that list the case of Association for Molecular Pathology v. Myriad Genetics.

The unusual feature of the Myriad Genetics decision is its unanimity. Clarence Thomas wrote for the court. Everybody else with one exception simply joined his opinion. The one exception is Justice Scalia, who wrote a concurrence, just to quibble that Thomas had gone further into the "fine details of molecular biology" than was necessary. Still, the vote on the judgment is 9-0.

Thomas engages in a close reading of the specific patent claims at stake and emphasizes that Myriad's claims are not "saved by the fact that isolating DNA from the human genome severs chemical bonds and thereby creates a nonnaturally occurring molecule. Myriad's claims are simply not expressed in terms of chemical composition, nor do they rely in any way on the chemical changes that result from the isolation of a particular section of DNA."

Thomas also makes the point that the products of if scientists don't merely isolate the DNA in question but change it to make it something not normally present in nature, -- also known as cDNA where the c stands for "complementary" -- the resulting claims will not "present the same obstacles to patentability."



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