Appeals Court Mulls Human Gene Patents

Isolated DNA molecules are patentable because they are new compositions of matter that do not exist in the body, a lawyer for Salt Lake City-based Myriad Genetics told the U.S. Court of Appeals for the Federal Circuit last week. “These are the products of molecular biologists, not of nature,” said Gregory A. Castanias. He urged the three-judge panel to reverse a ruling made last year by a federal district court that Myriad’s patents on two genes linked to breast and ovarian cancer are invalid (C&EN, April 5, 2010, page 9). The Patent & Trademark Office has allowed patents for genomic DNA for more than three decades. But the American Civil Liberties Union filed suit in 2009 claiming that such patents wrongly restrict science. Sarah A. Kagan, patent attorney with Banner & Witcoff, says biotechnology companies are concerned that “if the ground rules change when patents are already issued, patentees may not have the opportunity to obtain claims that are meaningful for their inventions.” A decision in the case is expected by late summer.