Myriad Genetics of Salt Lake City holds patents for isolated DNA, covering gene mutations BRCA1 and BRCA2. When present, the mutations indicate a high possibility of developing breast and ovarian cancer. The patents also cover ways of isolating the genes to test for the presence of the mutation.
DNA, or deoxyribonucleic acid, contains the genetic instructions -- or information -- that determine the development of living organisms.
A suit challenging the patents says Myriad's diagnostic analysis makes it impossible for women to confirm their test results elsewhere while others cannot afford the $3,000 cost of Myriad's test -- though insurance can bring that price down to $100.
A coalition of doctors, researchers, patients and others filed the suit in 2009 in New York. Eventually, the U.S. Court of Appeals for the Federal Circuit in Washington ruled that most of the plaintiffs did not have standing -- except for one New York physician-researcher. The appeals court said Myriad's patents were valid. All the plaintiffs and the doctor-researcher asked the Supreme Court for review.
Monday, a majority of the Supreme Court appeared skeptical of the company's argument, NBC News reported. Justice Samuel Alito posed the analogy of someone finding a plant in the Amazon that could cure cancer. Alito said, "You could patent the process used to get the chemical out and the use of the result, but you cannot patent the plant," he said.
SCOTUSBLOG.com reported it was clear the court has doubts about whether isolated DNA segments can be patented, but pointed to an Obama administration brief that suggested cDNA -- manipulated DNA -- can be.
Though the justices generally were skeptical, their comments from the bench are not always indicative of how they will vote.
Any decision in the case, which should come before the end of June, will affect billions of dollars in medical spending. The U.S. Patent and Trademark Office has awarded patents on human genes for nearly 30 years.
The genetic patents have led to $1 billion in revenue for Myriad and the University of Utah, the Patently-O blog reported last year.
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