By Sam Favate
- iStock
The American Civil Liberties Union, along with the Public Patent Foundation, again asked the Supreme Court to invalidate patents for two genes that are associated with hereditary breast and ovarian cancer, saying the patents restrict scientific research and access to medical care.
A 2010 ruling from a New York federal district court invalidated all of the challenged patents, which are held by Myriad Genetics Inc . and the University of Utah Research Foundation. In July 2011, the U.S. Court of Appeals for the Federal Circuit said companies can obtain patents on genes, but not the methods for comparing gene sequences.
Earlier this year, in March, the Supreme Court vacated the appeals court’s ruling and instructed that the case be reconsidered in light of its ruling in Mayo Collaborative Services v. Prometheus Laboratories, which invalidated patents on methods for evaluating a patient’s response to a drug. In response, the appeals court ruled last month that companies can obtain patents on the genes.
“In our view, the court of appeals did not fully consider or correctly apply the Supreme Court’s most recent and relevant patent law decisions,” said Chris Hansen, a staff attorney with the ACLU Speech, Privacy and Technology Project. “DNA occurs naturally in the human body and cannot be patented by a single company that can then use its patents to limit scientific research and the free exchange of ideas.”
The patents give Myriad the exclusive right to perform tests on the two genes in question. Women with some genetic mutations are believed to have up to an 85% chance of developing breast cancer and a 50% risk for ovarian cancer, according to Sandra Park of the ACLU Women’s Rights Project, in a blog posting. The patents essentially mean that laboratories around the country can’t provide genetic testing of those genes without permission of the patent holders.
The Supreme Court is likely to give Myriad a chance to respond before making a decision on whether to hear the case. Owners of patents have in the past said that research efforts could be hampered without legal protection for the work that went into discovering the genes, the Baltimore Sun noted.
“There’s a real crying need for clarification about patent law and intellectual property related to genomics,” Jeffrey Kahn, professor of bioethics and public policy at Johns Hopkins University, told the Sun.
A spokeswoman for Myriad wasn’t immediately available for comment.