Can You Patent Human Genes?

They argue that although Myriad has not exercised its authority to stop all research, it has a monopoly on clinical testing in the U.S., and the ability to discourage research because laboratories are dissuaded from pursuing scientific work that requires using patented genes.

Lori B. Andrews, a professor from Chicago-Kent College of Law who has filed an amicus brief on behalf of the American Medical Association and others, says, "Patents on human genes impede the provision of health care, thwart public health objectives, shackle innovation and violate ethical tenets."

The United States government has filed a brief arguing that patents on certain types of isolated genes are invalid. Solicitor General Donald B. Verrilli writes, "The mere act of culling a natural product from its environment to exploit its preexisting natural qualities—however useful those qualities may be—should be treated as insufficient to create patent-eligible subject matter."

Ceriani says that after "pestering" Myriad for more than a year and a half over a dispute with her health insurance company, she was finally able to get testing done through test kits donated by Myriad. It turned out she was at an increased risk for ovarian cancer.

"There are so many genes in our body," she says. "It's part of nature, it seems very contradictory to me that a company could say, that a piece of the inside of my body is only theirs to look at and not mine."

But Marylee Jenkins, head of the New York Intellectual Property Group of Arent Fox LLP, worries that such a statement oversimplifies the challenge in front of the Supreme Court.

"You have bio tech companies that have spent years and tens of millions of dollars in research and development and patent protection for their inventions with the general public not understanding the complexities of the patent system and protecting innovation in this country. You hope that the Supreme Court gets this right without negatively impacting the definition of patent-eligible subject matter under our U.S. patent system. Unfortunately or fortunately, innovation is often not as simple as we would like."

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