Utah’s Myriad Genetics defends gene patent claims

Posted: July 21, 2012 at 8:10 pm

Salt Lake City-based Myriad Genetics expressed confidence Friday it would prevail in defending its patents of genes related to breast and ovarian cancer in a case being closely watched nationally by researchers and the biotech industry.

Myriad attorneys appeared for the second time before a three-judge panel of a federal appeals court in Washington, D.C., to defend patents related to the two genes after the U.S. Supreme Court sent the case back for reconsideration of an earlier decision that upheld most of Myriads patents. That came after the Supreme Court struck down patents in a case revolving around some of the same questions.

The American Civil Liberties Union, which represents breast cancer patients, researchers and professional groups that sued Myriad, argued before the U.S. Court of Appeals for the Federal Circuit that the Utah company cannot patent works of nature such as genes.

But Myriad said the materials it patents are taken out of their naturally occurring context and isolated from the body and, therefore, are not works of nature.

Richard Marsh, Myriad executive vice president and general counsel, said the Supreme Court decision in the related case was distinct from Myriads situation because it involved a process for testing drug levels versus Myriads claim over DNA material isolated from the body.

"In our case, isolated DNA, isolated from the human genome, is not found in nature," Marsh said in an interview after the court hearing.

But the ACLU argues that even out of the body, isolated DNA materials remain a product of nature and are ineligible for patenting. By patenting the materials, Myriad can deny other researchers the opportunity to do research on them and develop different tests for measuring the risk a woman carries of gene-related breast and ovarian cancer, the group said.

"We need to be sure that natural things and all natural laws are available to all mankind," Chris Hansen, an ACLU lawyer, told the appeals court, according to Bloomberg News. The Myriad claims "cover every conceivable form of DNA."

The ACLU position was backed by the Justice Department, which represented the government in place of the U.S. Patent and Trademark Office, which normally appears in such cases.

Justice Department lawyer Melissa Patterson said that isolation of a specific gene was insignificant. She likened it to extracting coal from the ground.

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Utah’s Myriad Genetics defends gene patent claims

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