National Partnership for Women & Families

In the News

Supreme Court Justices Express Skepticism Regarding Gene Patents During Oral Arguments

Supreme Court Justices Express Skepticism Regarding Gene Patents During Oral Arguments

April 17, 2013 —During oral arguments on Monday in a Supreme Court case to determine whether human genes can be patented, the justices signaled that they were skeptical of the argument that human DNA should be patented like a scientific invention but wary of issuing a broad decision on the matter, the New York Times reports.

The lawsuit involves Myriad Genetics' patents on two genes -- known as BRCA1 and BRCA2 -- associated with breast and ovarian cancers. The justices will decide whether isolated genes are "products of nature" or "human-made inventions," which can be patented.

The ruling in the case could affect the future of scientific research and medical testing and alter the willingness of companies to invest in costly research to isolate and understand genetic material, theTimes reports. Further, it could affect thousands of patented genes, prescription drugs, vaccines and genetically modified crops (Liptak, New York Times, 4/15).

Key Arguments

According to the Wall Street Journal, the justices seemed unsatisfied with challenging attorney Christopher Hansen's assertion that genetic research could be incented through professional achievement and public acclaim (Bravin, Wall Street Journal, 4/16) Justice Antonin Scalia asked, "Why would a company incur massive investment if it cannot patent?" (New York Times, 4/15).

Hansen said, "The genes themselves ... where they start and stop, what they do, what they are made of, and what happens when they go wrong are all decisions that were made by nature, not by Myriad," adding, "Myriad deserves credit for having unlocked these secrets. Myriad does not deserve a patent for it" (Barnes, Washington Post, 4/15). In addition, Hansen asked, "What exactly did Myriad invent?" He added, "The answer is nothing."

Gregory Castanias, a lawyer for Myriad, argued that the company's researchers isolated the genes. "There was invention in the decision of where to begin the gene and where to end the gene," he said. Castanias compared the patenting of genes to a baseball bat. "A baseball bat doesn't exist until it's isolated from a tree," he said, adding, "But that's still the product of human invention to decide where to begin the bat and where to end the bat." According to the Times, Chief Justice John Roberts was skeptical of Castanias' analogy.

Some of the justices seemed to favor a plan suggested by Solicitor General Donald Verrilli -- representing the federal government -- that would revoke patents for isolated genes but maintain patent protection for manipulated genes. According to the Times, the justices seemed amenable to allowing patents for particular uses of genes (New York Times, 4/15).

A decision in the case is expected in June (Savage, "Politics Now," Los Angeles Times, 4/15).