Supreme Court hears oral arguments in breast cancer gene patent case

The Supreme Court heard oral arguments on Monday in a challenge by a contingent of breast cancer patients and women's health organizations against a Utah company's claim to being able to patent human genes.

Bloomberg News reported that the high court used analogies like chocolate-chip recipes in discussing the case, stemming from a 2009 suit filed by the American Civil Liberties Union (ACLU) against Myriad Genetics for filing patents on two genes connected with increased risk of breast and ovarian cancer.

According to NBC News, mutations in the genes, BRCA1 and BRCA2, can lead to an 85 percent risk of breast cancer and a possible 50 percent risk of ovarian cancer.

Justice Antonin Scalia expressed concern during the discussion for the potential impact of the lawsuit on companies' ability to conduct research.

"Why would a company incur massive investment if it can't patent?" Scalia asked at one point.

Attorneys for the ACLU and the Public Patent Foundation said in a statement that Myriad's patent on the genes is unlawful because it removes them from being examined by the scientific community at large.

"Myriad did not invent the human genes at issue in this case, and they should not be allowed to patent them," ACLU attorney Chris Hansen said. "The patent system was designed to encourage innovation, not stifle scientific research and the free exchange of ideas, which is what these patents do."

A federal appeals court ruled in favor of Myriad in 2011, saying DNA isolated from the body could be patented because its chemical structure was "markedly different" from biological material located inside a person's chromosomes. However, the court also ruled that the company could not patent the analysis process used to determine whether mutations were present.

President Barack Obama's administration urged the court to consider whether Myriad could have a patent on complimentary DNA (cDNA), a synthesized version of the material. Justice Anthony Kennedy asked whether that provision would "give the industry sufficient protection for innovation and research"

A decision is expected by the end of June 2013.

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