Human Genes as a Patent subject in United States of America

10/1/2013 | The human body consists of many particular substances called "genes" which have an important function in the human body. Genes are one of the interesting fields for pharmaceutical area. Recently the company Myriad successfully identified an important gene named "BRCA". By analyzing this gene, Myriad could predict the probability of breast cancer and ovarian cancer in woman. Myriad therefore intended to apply for a patent on this gene and the method to analyze it. However, the patent application was challenged because of its patentability. First, the plaintiff argued that a gene is a natural substance which could be found in any human being and therefore it could not be patented. Myriad's brought argued that without her specific method, this particular gene could not be found in nature. Furthermore, this gene was marked by "a different chemical structure" compared to normal DNA within the body and therefore this discovery should be protected. Myriad also argued that the protection of this discovery would encourage scientist for further research.
The plaintiff however argued that the method of analysis should not be protected. Since Myriad specified their method roughly as comparing and analyzing two genes in order to find an abnormality, the court considered this method as a general scientific metohod which could not be patented.

Source: Ass'n for Molecular Pathology v. US Patent and Trademark Office 653 F.3d 1329 (U.S. Court of Appeals, Federal Circuit 2011)

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