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US Amicus Brief Reverses Course on Gene Patenting, Conflicts with PTO

Posted Nov 1, 2010 9:04 AM CDT
By Debra Cassens Weiss

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In an amicus brief filed late Friday, the U.S. government takes the position that genes should not be eligible for patents.

The assertion reverses policy and is contrary to the long-standing practice of the Patent and Trademark Office, the New York Times reports. “The new position could have a huge impact on medicine and on the biotechnology industry,” the story says.

The case, pending in the U.S. Court of Appeals for the Federal Circuit, involves the BRCA1 and BRCA2 genes linked to ovarian and breast cancer. The amicus brief (PDF filed by the New York Times) says merely isolating a gene, without any additional alteration, is not deserving of patent protection.

Edward Reines, a patent lawyer at Weil Gotshal & Manges who represents biotechnology companies, noted in a Times interview that no lawyer from the Patent Office was listed on the brief. He believes that’s a hint that the PTO opposed the new position but was overruled.

Additional coverage:

ABAJournal.com: “Stocks Lower After Judge’s ‘Pigs Fly’ Ruling Striking Down Gene Patents”

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

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