The U.S. Supreme Court seemed worried Monday about the idea of companies patenting genes that can be found inside the human body, as it heard arguments in a case that could profoundly reshape U.S. medical research and the fight against diseases such as breast and ovarian cancer.
The U.S. Patent and Trademark Office has been awarding patents on human genes for almost 30 years, but opponents of Myriad Genetics Inc.'s patents on two genes linked to increased risk of breast and ovarian cancer say patent protection should not be given to something that can be found inside the human body.
"Finding a new use for a product of nature, if you don't change the product of nature, is not patentable. If I find a new way of taking gold and making earrings out of it, that doesn't entitle me to a patent on gold. If I find a new way of using lead, it doesn't entitle me to a patent on lead," lawyer Christopher Hansen said.
Allowing companies like Myriad to patent human genes or parts of human genes will slow down or cripple lifesaving medical research like in the battle against breast cancer, he said.
But companies have billions of dollars of investment and years of research on the line, with Myriad arguing that without the ability to recoup their investment through the profits that patents bring, breakthrough scientific discoveries needed to combat all kind of medical maladies wouldn't happen.
That concerned several justices. "Why shouldn't we worry that Myriad or companies like it will just say, 'Well, you know, we're not going to do this work anymore?'" Justice Elena Kagan said.
Hansen said that a company could get recognition for its work and that money for research would always be available, a statement that Justice Anthony Kennedy said wasn't sufficient. "I don't think we can decide the case on, 'Don't worry about investment. It'll come,'" Kennedy said.
The Supreme Court has already said that abstract ideas, natural phenomena and laws of nature cannot be given a patent, which gives an inventor the right to prevent others from making, using or selling a novel device, process or application.
Myriad has used its patents to develop its BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer.