Gene patent ruling hurts Myriad, but not fatally

The Supreme Court's decision cuts both ways for the biotech company that had patented the genes thought to cause breast cancer.

By Jason Notte Jun 13, 2013 3:32PM
3D Biomedical Illustration of DNA strands (© 4X-image/E+/Getty Images)No, private companies, you can't slap a patent on genes that occur in nature.


You can, however, hold exclusive rights to any Frankensteined gene that comes out of your lab. That's the leeway the Supreme Court offered on Thursday when it handed down its decision in Association for Molecular Pathology vs. Myriad Genetics (MYGN), which centered around Myriad's desire to patent the so-called BRCA genes believed to cause breast cancer.


This is going to create quite a mess in the federal patent office, where thousands of patents for isolated genes have been issued since 1982. It's not great news for biotech companies, either, as those 30-plus years of patents helped protect their research from competitors and, in turn, attracted a lot of investment.


On the other side of the equation, according to Bloomberg, it frees doctor groups and patient advocates to use those genes for clinical testing and research that they accused Myriad of blocking. According to Justice Clarence Thomas' written decision against Myriad, you have to actually make something to patent it. While identifying and isolating an existing gene is a "groundbreaking, innovative, or even brilliant discovery," it's not an invention and doesn't warrant patent protection.


The decision unwinds that of the Federal Court of Appeals, which determined that separating the gene from the surrounding natural chromosome by cutting the chemicals between them creates complementary DNA, or cDNA. But with the Supreme Court ruling, natural material no longer qualifies as cDNA, and only modified synthetic sequences can be patented as cDNA.


Myriad still got some good news, however, because the processes for isolating genes in naturally occurring DNA and applying them to treatments are still patent-protected. That's a win for company, analysts say, because it gets to keep the 24 patents on its tests for hereditary breast and ovarian cancer risk. One of those tests identified a genetic mutation in Angelina Jolie and led the actress to undergo a double mastectomy.


With Myriad's and other companies' patented genes now freed, gene databases are available for the production of new analytical technology and treatments. Annual U.S. spending on medical DNA testing will rise to $25 billion in the next decade from $5 billion in 2010, according to UnitedHealth Group (UNH), the biggest for-profit health insurer in the nation.


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22Comments
Jun 13, 2013 4:41PM
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"According to Justice Clarence Thomas' written decision against Myriad, you have to actually make something to patent it."

Wow, what level-headed reasoning.  Right on Justice Thomas!
Jun 13, 2013 5:20PM
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Maybe Henrietta Lacks descendants will be able to get some reparations from the sneaky theft of her

immortal cells that all humankind has benefitted from since her death in 1951.  Scientists have grown

about 20 tons of her cells and there are almost 11,000 patents using her cells.  While it's nice they named

a school after her and gave her an honorary degree 60 years after her death and a day set aside I  her honor

Oct, 11th.  and a Dr. bought a grave marker 60 years after her death.  Not one organization that I know of

ever offered to give her family one cent.  An author,  Rebecca Skloot started a foundation using some of the

proceeds from her book, that paid  to repair son Davids tractor trailer and helps with education grants..  But,

Johns Hopkins where his mothers immortal genes were first discovered and grown  is still sending him bill for

$125,000.00 for heart surgery.  That he's paying off a little by little every month.

We're talking polio vaccine and a lot of other medicines like chemotherapy drugs, companies

have made billions from...if not trillions from by now.  They are still growing  and using HeLa cells.  There are

still two of her sons living.  Even if they were awarded a mere $2000.00 for every patent issued it would mean

that her sons could have a secure retirement and David would be able to pay off his hospital bill to Johns

Hopkins and spend the rest of his days in peace instead of worrying about how to pay next months bill to the

hospital that benefitted astronomically from his mothers contribution to medicine.

Jun 13, 2013 5:40PM
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Good! Next thing would be these companies suing every one of us for patent infringement.
Jun 13, 2013 5:22PM
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I really hope that in the future all Cancer can be cured, I lost my own Mom to cancer.

If there were more research on health issues instead of wars there would be more Birthdays.

Jun 13, 2013 5:54PM
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Justice Thomas surprises us all for once!
Jun 13, 2013 7:15PM
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Blame it all on Monsanto, the most evil fuchtards in the world.
Jun 13, 2013 7:00PM
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finally something that makes sense
Jun 13, 2013 7:24PM
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3 cheers for Justice Clarence Thomas he came down on the side of truth and justice.
Not on the side of these companies that want to suck the life out of progress.

What if Columbus had been able to extort a fee from all who traveled to the new world.
What if Einstein had said you cannot study or research my theories unless you pay me first.
Jun 13, 2013 7:12PM
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I hope all the farmers that have been sued by Monsanto will now be able to counter sue the giant. We need to break Monsantos strangle hold on our food supply that is ruining our health. Thank you Clarence Thomas!!
Jun 13, 2013 7:14PM
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A lot more money to be made here either way and also ground breaking discoveries on the biology and essence of life also the potential to really open up a Pandora's box for humanity.....
Jun 13, 2013 6:04PM
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This does have its upside and down side, both in gene research and testing, and in application for gene manipulation. Since lesser known and small genetic engineering firms will be open to exploit genetic discoveries, we may see some genetic garbage and even some dangerous gene's hit our lives...Imagine all the small biotech firms who have poorly trained technicians developing synthetic genes or retro gene viruses. We could see come very dangerous mutant genes come out of small labs.

I guess genetic manipulation will be a crap shoot, either creating an environment of massive breakthroughs or possibly the end of humanity. Or at least a race of genetic mutants who cannibalistically eat the rest of us in their question for domination of the world.  

Jun 13, 2013 8:13PM
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jeans are for everybody to wear..Ok , maybe you come up with a pair that automatically tailorr them selves to your body..I could see getting a patent on that.
Jun 13, 2013 5:19PM
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We were just talking about this on another site.  I'm not a scientist, by any means!  Just thinking about this stuff confuses me.  I understand that not being able to patent a natural gene is a good thing as it will open up the market for creating new technologies and treatments.  What about the synthetically produced gene?  I see this as a big win for big companies, like Myriad. That still scares me.  It seems like they can just copy any gene they want synthetically, patent it, and do whatever they want with it! 
Jun 13, 2013 7:09PM
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Guess this screws up the governments plans of getting a patent like they did on marijuana. 
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