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Federal Circuit Rules Isolated Genes Can Be Patented

Posted Aug 1, 2011 8:19 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that companies can patent isolated human genes, overturning a lower court ruling that had surprised some observers.

The U.S. Court of Appeals for the Federal Circuit ruled on Friday for Myriad Genetics Inc. and its patents on genes associated with increased risk of breast and ovarian cancer, report the National Law Journal and the New York Times.

The lead decision (PDF) by Judge Alan Lourie said DNA isolated from the body is “markedly different” from DNA inside the chromosomes. As a result, the DNA is not a product of nature that is ineligible for patent protection. Judge Kimberly Moore agreed that genes could be patented but cited “somewhat different reasoning,” the Times says.

Dissenting Judge William Bryson disagreed that isolated genes could be patented. In some respects, he said, “extracting a gene is akin to snapping a leaf from a tree.”

The court ruled against Myriad on one of two patent claims for its screening methods, however. The court said Myriad’s method for analyzing gene mutations that raise cancer risk may not be patented because it does not include transformative steps. Myriad’s chief executive told the Times that the patent claim rejected by the court was not important and the company’s patent protection was strong.

Prior coverage:

ABA Journal: “Wrangling Genes: As the law changes and new medical frontiers open, the dispute over genetic patents intensifies”

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