By Brent Kendall
A federal appeals court suggested Friday that it may not retreat from its ruling last year that isolated human genes can be patented.
The U.S. Court of Appeals for the Federal Circuit was revisiting its 2-1 ruling last July that largely upheld Myriad Genetics Inc.?s ?patents on two genes that can signal if a woman faces greater risk of developing breast cancer or ovarian cancer. Myriad?s patents allow the company to be the exclusive U.S. commercial provider of genetic screenings for the diseases.
Patients and medical groups argue Myriad is trying to patent ?products of nature,? which can?t be patented. They say the gene patents interfere with medical treatment and scientific research, claims that Myriad disputes.
This spring, the U.S. Supreme Court ordered the Federal Circuit to reconsider the Myriad case in light of the justices? new ruling in a different patent case that tightened rules on medical-testing patents.
But during 45 minutes of oral arguments Friday, the three Federal Circuit judges reiterated many of the views they had expressed in their earlier opinion.
Judge Alan Lourie, who wrote the lead opinion that favored Myriad, again made comments suggesting he agreed with Myriad?s arguments that the company wasn?t patenting a product of nature. He said the process of extracting and isolating a gene from the human body made the gene chemically distinct from the DNA that exists naturally.
Judge Lourie also suggested the Supreme Court?s recent ruling, which invalidated two Prometheus Laboratories patents on a diagnostic test for monitoring drug dosages, raised different legal issues that didn?t apply directly to Myriad?s gene patents.
Judge William Bryson, who dissented in the earlier Myriad ruling, again appeared to stick to his belief that, while Myriad?s discovery of the breast cancer genes entailed difficult work, the gene sequences themselves were unpatentable scientific facts.
That left Judge Kimberly Moore, who provided a second vote for Myriad last year in a concurring opinion. Judge Moore again noted that the U.S. Patent and Trademark Office has allowed patents on DNA sequences for decades, and she said that disturbing the industry?s long-held expectations risked upending years of financial investments in scientific innovations. ?There?s a lot of money at stake here,? she said.
Judge Moore also told the challengers that one of their renewed arguments against Myriad, based on language in the Supreme Court?s ruling, was ?a waste of time and space.?
The judge, however, repeated her previous concerns about whether some of Myriad?s claimed inventions are really patentable, leaving her vote at least somewhat uncertain.
A decision is expected in the coming months. It is likely the losing party will appeal to the Supreme Court.
Source: Wall Street Journal
Source: http://justasklegal.com/judges-hold-the-line-on-gene-patents/5456/
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