Supreme Court Seems Skeptical As Myriad Claims Gene Patents Should Exist, Because It Put A Lot Of Work Into Finding Them

from the sweat-of-the-brow dept     http://www.techdirt.com/articles/20130415/16444322713/supreme-court-seems-skeptical-as-myriad-claims-gene-patents-should-exist-because-it-put-lot-work-into-finding-them.shtml

As many people know, on Monday, the Supreme Court finally heard the Myriad Genetics case, to look at whether or not genes are patentable subject matter. For the past few decades, the USPTO has generally argued that you can patent genes, which just seems crazy to most folks who point out that it's nuts to patent something that exists in your body. Supporters argue that they're trying to patent the process of isolating the gene, but that's just semantics. As you may recall, the appeals court, CAFC, had decided that genes are patentable because they're separate from your DNA. After that, the Supreme Court disallowed patents on medical diagnostics, and asked CAFC to reconsider the Myriad case with that as a guide. In response, CAFC stuck by its guns, insisting that genes are patentable.

With the big caveat that oral hearings are often meaningless in terms of how the Supreme Court eventually rules, the transcript and the various reports from those who were there suggest that there is at least some good skepticism about patenting genes. First off, we should point out that Myriad's CEO, Peter Meldrum posted a ridiculous op-ed at USA Today over the weekend, in which he argued that Myriad should be allowed to get patents because it worked hard to get them.

To create tests for hereditary breast cancer and ovarian cancer, our company and its investors spent more than $500 million over 17 years before we were able to recoup this investment.

Except, of course, patents aren't about the sweat of your brow and how much work you put into something. Nor -- despite Meldrum's silly claims -- are they about letting companies "own" their findings:

We think it is right for a company to be able to own its findings, just as pharmaceutical and other companies do all the time.

Except, of course, that's wrong. Because Meldrum does not want any other companies, who came up with the same thing independently, to "own" their "findings." Instead, he wants them to pay up or go out of business. For all of those companies, who may have spent even more money, that, apparently, doesn't matter at all, which highlights the complete hypocrisy of Meldrum's position. His argument only applies to his company, and not any other.

Furthermore, Myriad's critics made clear to point out that other labs were working on the same thing and were happily foregoing patent protection. The clear suggestion: it wasn't the patent that created the incentive, and the end result was that all of those other businesses were harmed. So Myriad's argument that it's helping researchers is doubtful.

We know that there were other labs looking for the BRCA genes and they had announced that they would not patent them if they were the first to find it. We also know that prior to the patent actually being issued, there were other labs doing BRCA testing and Myriad shut all that testing down. So we know in this particular case that problem would not have arisen.

But the point of the whole -- the whole point of the product of nature doctrine is that when you lock up a product of nature, it prevents industry from innovating and -- and making new discoveries. That's the reason we have the product of nature doctrine, is because there may be a million things you can do with the BRCA gene, but nobody but Myriad is allowed to look at it and that is impeding science rather than advancing it.

Justice Scalia followed that up by asking why would anyone invent anything if they can't get a patent. Of course, he might want to ask all of those labs that invested in the same process, but can't do anything about it. It seems they lose out, too.

In the end, there was clear skepticism from the Justices, but also a suggestion that they might try to punt the issue (again!) by ruling narrowly on particular issues, rather than by taking on the big question. We'll see how it all comes out in a few months...