The patentability of genes is back in the news. This time, the American Civil Liberties Union has stepped in and asked the highest court of the land to decide whether genes can or can’t be patented.
Their issue relates to human genes which provide some insight into breast and ovarian cancer risk in women. According to The Baltimore Sun, a process of analysis using the BRCA1 and BRCA2 genes can detect whether some women are at a higher risk of breast and ovarian cancer.
You might remember this issue from the earlier Myriad Genetics case. The Myriad case was a landmark case on the question of the patentability of genes. While the District Court ruled that genes were products of nature and could not be patented, the Federal Circuit Court of Appeals reversed the ruling. SCOTUS sent the case back to the Federal Circuit, after Mayo v. Prometheus came out and said that observations on natural phenomenon could not be patented.
Even after the case was remanded by the U.S. Supreme Court, the Federal Circuit held that Myriad could patent the isolated genes in question, as isolated DNA was different from the DNA found in nature.
The problem with Myriad's patent is that it gives Myriad the exclusive right over genetic testing on those two genes, The Wall Street Journal noted.
Now, the ACLU is asking the Supreme Court to have another go at the Myriad case. The ACLU is arguing that Myriad's genes get in the way of innovation and genetic testing. It also argues that patents on human genes are in violation of the First Amendment.
The ACLU claims that the issue on the patentability of genes is still unclear. Will the Supreme Court take on Myriad, Part II?