Supreme Court to Look at a Gene Issue

The New York Times

The Supreme Court announced on Friday that it would decide whether human genes may be patented. The justices considered but took no action on requests that the court hear one or more cases concerning same-sex marriage.

The case the court added to its docket concerns patents held by Myriad Genetics, a Utah company, on genes that correlate with increased risk of hereditary breast and ovarian cancer.

The patents were challenged by scientists and doctors who said that their research and ability to help patients had been frustrated. “Myriad and other gene patent holders have gained the right to exclude the rest of the scientific community from examining the naturally occurring genes of every person in the United States,” the plaintiffs told the Supreme Court in their petition seeking review. They added that the patents “prevent patients from examining their own genetic information” and “made it impossible to obtain second opinions.”


The legal question for the justices is whether isolated genes are “products of nature” that may not be patented or “human-made inventions” eligible for patent protection.

A divided three-judge panel of a federal appeals court in Washington ruled for the company. Each judge issued an opinion, and a central dispute was whether isolated genes are sufficiently different from ones in the body to allow them to be patented.

“The isolated DNA molecules before us are not found in nature,” wrote Judge Alan D. Lourie, who was in the majority. “They are obtained in the laboratory and are man-made, the product of human ingenuity.”

The company urged the justices not to hear the case, saying that the “isolated molecules” at issue “were created by humans, do not occur in nature and have new and significant utilities not found in nature.” It has long been settled, the company’s brief went on, that “the human ingenuity required to create isolated DNA molecules” is worthy of encouragement and that its fruits are worthy of protection.

The plaintiffs in the case, Association of Molecular Pathology v. Myriad Genetics, No. 12-398, were supported by friend-of-the-court briefs filed by the American Medical Association, AARP and women’s health groups.

The justices were also scheduled to consider on Friday 10 closely watched appeals in cases concerning same-sex marriage, but they gave no indications about which ones, if any, they will hear. It is not unusual for the justices to discuss petitions seeking their attention more than once, particularly when the cases present complex and overlapping issues.

The court is widely expected to agree to hear one or more cases on the constitutionality of the part of the federal Defense of Marriage Act of 1996 that forbids the federal government from providing benefits to same-sex couples married in states that allow such unions.

The court has also been asked to hear cases about Proposition 8, the ballot initiative that banned same-sex marriage in California, and an Arizona measure that withdrew state benefits from both gay and straight domestic partners.

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