Friday saw the US Court of Appeals for the Federal Circuit (which we’re told by the New York Times told specialises in patent cases) rule that Myriad can patent the isolated BRCA1 and BRCA2 genes, mutations in which are diagnostic for (some) cases of breast and ovarian cancers.
The three judges didn’t rule unanimously, with the ruling based on a majority. Most sources are citing a 2:1 ruling. My reading of it is that all three judges differed in reasoning.
While the ruling has sided with patenting of the genes, the judges ruled against Myriad’s method of diagnosing the patients.
Below I’ve offered a few links for those interested in this decision.
- New York Times (brief but good; includes brief takes on the Judge’s reasoning)
- The CAFC ruling (PDF file; this is the actual legal ruling – while long it is for the most part quite readable; I’d encourage reading Judge Bryson’s dissenting views, some of which I have excerpted below.)
- Genome Web News (or this article; free registration required)
- ArsTechnica (good discussion and more depth; recommended)
My thoughts? I’m not a lawyer, and this will come down to understanding how their actions sit compared to current law in the USA (something I know nothing about), but colour me surprised. Regardless of the details, I would like to think I’m not a long in thinking that the Judges not putting forward a unified front suggests a need for clarity.
The argument that genes are chemically different through being extracted seems at first blush–to paraphrase Judge Sweet’s earlier remark–’a lawyer’s trick’. It reads to me to be a shifting of the target from sequences (which are information and–surely–what is sought) to ‘chemicals’ (the DNA) in order to try win favour in court.