Thursday, June 13, 2013

Supreme Court Decides AMP v. Myriad (Breast Cancer Gene Patenting Case)

The Supreme Court just decided Association for Molecular Pathology v. Myriad Genetics, Inc.   The case involved the patentability of genes used to detect breast cancer.

As was expected after April's oral argument, the court held that isolated DNA is not patentable, but synthetic DNA is patentable.  The holding is summarized as follows:
For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.
This reverses the Federal Circuit in part, in a unanimous decision by Justice Thomas (Justice Scalia joined the majority opinion only in part, and wrote a brief concurring opinion disclaiming any knowledge about the "fine details of molecular biology").  I had previously written about the Federal Circuit's two decisions here and here.  The Supreme Court agreed with the Patent Office that isolated genes are not patentable.

At one point, the Court repeated an interesting statement from its 2012 opinion in Mayo v. Prometheus:

As we have recognized before, patent protection strikes a delicate balance between creating “incentives that lead to creation, invention, and discovery” and “imped[ing] the flow of information that might permit, indeed spur, invention.” 

The Myriad decision will likely reduce the costs of breast cancer testing such as the type Angelina Jolie recently publicized.

UPDATE:  Here are posts about this case by EFF, SCOTUSblog (also in plain English), Patently-O, and Techdirt.

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