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Justices skeptical of human gene patents

WASHINGTON -- The Supreme Court justices said yesterday they were highly skeptical of the idea that a company or a scientist can hold a patent on human genes and prevent others from testing or using them.

"What about the first person who found a liver?" asked Justice Elena Kagan. She was agreeing with other justices who said patents should not be given for "products of nature," whether they are plant leaves that cure a disease or tiny parts of the human body.

Justice Stephen Breyer said patent law involves an "uneasy compromise" because it seeks to advance science and innovation by giving an inventor a temporary monopoly to profit from new discovery.

If inventors devise a new use for a substance, they can patent this use, he said. But they cannot patent the underlying substance, he added. "It's important to keep products of nature free" for use by all, he said.

Most of the justices questioned the decision of the U.S. Patent and Trademark Office to grant Myriad Genetics a patent on two isolated gene sequences, BRCA 1 and BRCA 2, which signal a high risk of breast or ovarian cancer.

Chief Justice John G. Roberts Jr. said Myriad had simply "snipped" part of the gene sequence. It did not invent a new product, but simply found a way to isolate part of the human DNA, he said.

Because of Myriad's patents, the Utah company has been able to profit from testing women who are concerned about their inherited risk of the two cancers.

Four years ago, breast cancer patients and medical researchers sued to challenge Myriad's patents, arguing that human genes themselves could not be subject to patent protection.

These patents "cover the genes of every man, woman and child," Chris Hansen of the American Civil Liberties Union told the court. It "can't be right," he said, that a private company can hold monopoly control over genes from the human body.

A lawyer from Myriad argued that the company had devoted years of research to isolating the human genes and the mutations that are correlated with a high risk of cancer. "It would be dangerous," he said, for the court to backtrack and to deny patents to innovators who make scientific advances using natural products.

The justices did not sound convinced. If snipping the leaf of a medicinal plant could not be patented, snipping a gene sequence is not enough to obtain a patent either, Roberts said.

Last year, the high court unanimously rejected a patent for a personalized medicine dosing formula held by Prometheus Labs. The justices said the formula, which relied on a blood test, rested on a "law of nature" and therefore, could not be patented.

A decision in the case of Association for Molecular Pathology v. Myriad Genetics can be expected by the end of June.

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