Can Companies Patent Parts of the Body?

Breast Cancer
Image Credit: National Cancer Institute

The legal battle will affect all of us - essentially whether a patent can be awarded on something that occurs in nature.

The background is that Myriad Genetics has seven patents on the genes, BRCA1 and BRCA2, which are associated with human breast cancer.  Because of the patents, medical technicians and researchers cannot develop new breast cancer techniques, and cannot even perform a blood-based breast cancer test unless Myriad Genetics is compensated. 

Defending the Body Corporate: Appeals Court Puts Gene Patents on the Stand explains that in March 2010, a group of plaintiffs won a victory in a New York court that invalidated the patents.  This past past week, Myriad Genetics and the University of Utah Research Foundation appealed that decision.  The company and university did not argue that they created the gene, but that they isolated it from the rest of the human DNA, and that constitutes the right for patent protection.

The Scientific American article tells that the plaintiffs counter that diamonds exist in the Earth's crust.  Although technology and work are required to harvest the diamonds, the diamond itself is not patentable.  The corporate lawyers counter that if the mineral was unknown in the Earth and it took new technology to discover the mineral, then it should be patentable.  You see where all this is headed - the Supreme Court, regardless of this latest court challenge.

U.S. Court Puts Gene Patents Under a 'Magic Microscope' adds the Department of Justice (DOJ) surprisingly sided with the plaintiffs.  The Patent and Trademark Office is backing the Myriad Genetics, and its decision to award thousands of genetic patents, but the participation of the DOJ surprised many.  The DOJ is saying that if someone could look within a living cell and see the gene, then it is a natural molecule and should not patentable.

Mmm.  I believe invention should be required for patents, not discovery.

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a group of plaintiffs won a victory in a New York court that invalidated the patents. This past past week, Myriad Genetics and the University of Utah Research Foundation appealed that decision.