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The Supreme Court heard arguments today in a case with huge implications for medicine, science and business, at issue is whether human genes can be patented. On one side is the genetics testing company called Myriad. It and the biotech and pharmaceutical industries as a whole see patents as the keys to new scientific exploration. On the other side are doctors, patients and many scientists. They argue that gene patenting is an attempt to monopolize and block innovation in genetics.
NPR's legal affairs correspondent Nina Totenberg has our story.
NINA TOTENBERG, BYLINE: Everyone agrees that Myriad is justifiably proud of what it did in finding and isolating two genes that have mutations indicating a hereditary link to breast and ovarian cancer. But when Myriad patented those genes, the scientific and patient community rebelled. On the steps of the Supreme Court today were some of those who sued to challenge the patents, Dr. Harry Ostrer of Albert Einstein Medical College in New York.
DR. HARRY OSTRER: Right now, I can't offer a testing to my patients. I can't develop a better way of doing genetic testing.
TOTENBERG: Inside the Supreme Court, the justices seemed to become increasingly skeptical about allowing a patent on genes. Representing the patent challengers, lawyer Christopher Hansen told the justices that Myriad deserves credit for finding and isolating the two genes, but he said the genes are products of nature and are thus not patentable.
Justice Alito: Suppose someone discovers a plant in the Amazon that treats breast cancer and a new way is found to extract that. You say it's not eligible for patenting? Answer: It may be patentable if you've transformed what was in nature by concentrating it into a form that works in a way it did not work in nature.
Justice Kagan: What are the incentives for companies to do what Myriad did if there's no patent? What's in it for them? Answer: Other labs were looking for these genes when Myriad found them, except that those labs had announced that they would not patent the genes if they were the first to find them.
Justice Sotomayor: Isn't the answer that it's not the isolation of the gene that's valuable, it's what you do with it? Following lawyer Hansen to the lectern was Solicitor General Donald Verrilli, who agreed with part of Hansen's argument, that genes cannot be patented. However, synthetic DNA made from parts of real DNA, he argued, can be patented.
Justice Sotomayor: Well, if they can patent the synthetic substance, what does it matter? Answer: Allowing a patent on an isolated gene would effectively preempt anyone else from using the gene itself for any medical or scientific purpose. That is not true of a patent on the synthetic substance, which leaves the gene free for general use.
Next up was Myriad's lawyer, Gregory Castanias, who took quite a beating from all quarters. His main argument was that by isolating the genes and taking them out of the body, Myriad had created a new substance deserving of a patent. Justice Sotomayor suggested that when she bakes chocolate chip cookies using salt, flour, butter, eggs and sugar - all natural products - she might get a patent on her special cookies, but she couldn't get a patent on the natural ingredients.
Justice Scalia: You haven't created a new gene that doesn't exist in the body. Lawyer Castanias analogized the isolation of the genes to the creation of a baseball bat made up of the natural substance of wood.
Chief Justice Roberts: What Myriad did was to snip out the genes from other genetic material. The baseball bat is quite different. You don't look at a tree and say, well, I've cut the branch here and cut it here, and all of a sudden I've got a baseball bat. You have to invent it.
Justice Kagan: Do you think the first person who isolated a chromosome could have gotten a patent on it? Answer: In theory, it's possible. Justice Kagan: How about the first person who found a liver?
Castanias drew the line there, maintaining that livers, kidneys, gallbladders are the same when taken out of the body as when in it, whereas the genes isolated by Myriad give patients a new thing they didn't have before. Justice Kennedy: That would have been true with atomic energy and electricity, but they were laws of nature and were not patentable.
Justice Breyer: The patent law is filled with uneasy compromises. On the one hand, we do want people to invent. On the other hand, we're very worried about them tying up a thing that itself could be used for further advance.
So if you get a new process to extract sap from a plant in the Amazon that can cure cancer, of course, you can patent the process. But what you can't do is to patent the sap itself. Nina Totenberg, NPR News, Washington.
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