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Patenting genes: Justices tackle big health issue in case with Utah ties

By Jesse J. Holland

Associated Press

Published: Monday, April 15 2013 5:40 p.m. MDT

Justices attempted to break the argument down to an everyday level by discussing things like chocolate chip cookies, baseball bats and jungle plants.

Castanias, the Myriad lawyer, argued that the justices could think about the gene question like a baseball bat. "A baseball bat doesn't exist until it's isolated from a tree. But that's still the product of human invention to decide where to begin the bat and where to end the bat," he said.

That didn't work for Chief Justice John Roberts.

"The baseball bat is quite different. You don't look at a tree and say, well, I've cut the branch here and cut it here and all of a sudden I've got a baseball bat. You have to invent it, if you will," Roberts said. "You don't have to invent the particular segment of the strand. You just have to cut it off."

The court moved on to body parts. Said Justice Sonia Sotomayor, "If you cut off a piece of the whole in the kidney or liver, you're saying that's not patentable, but you take a gene and snip off a piece, that is? What's the difference between the two?"

Castanias tried again, comparing the company's patented genes to medicine.

"It's important to note that molecules have been patented for a very long time. That's what drugs are. And drugs are often made by taking one molecule and another molecule, both of which are known, reacting them in a test tube," he said. "Reactions have been around 100 years just like snipping has been, but they make something new and useful and lifesaving from that."

Roberts still wasn't convinced. "Well, I don't understand how this is at all like that, because there you're obviously combining things and getting something new. Here you're just snipping, and you don't have anything new, you have something that is a part of something that has existed previous to your intervention," he said.

That was the ruling of the original judge who looked at Myriad's patents after they were challenged by the ACLU in 2009. U.S. District Judge Robert Sweet said he invalidated the patents because DNA's existence in an isolated form does not alter the fundamental quality of DNA as it exists in the body or the information it encodes. But the federal appeals court reversed him in 2011, saying Myriad's genes can be patented because the isolated DNA has a "markedly different chemical structure" from DNA within the body.

The Supreme Court threw out that decision and sent the case back to the lower courts for rehearing. That came after the high court unanimously threw out patents on a Prometheus Laboratories Inc. test that could help doctors set drug doses for autoimmune diseases like Crohn's disease. The justices said the laws of nature are unpatentable.

But the federal circuit upheld Myriad's patents again in August, leading to the current review.

The court will rule before the end of the summer.

The case is 12-398, Association for Molecular Pathology v. Myriad Genetics, Inc.

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