The US Court of Appeals has ruled that Myriad cannot patent its gene tests. The case was brought to the court after the US Supreme Court blocked genomic testing.
Myriad Genetics had patented a test on the BCRA1 and BCRA2 genes that reveal mutations that tell women if they are susceptible to ovarian and breast cancer. After the Supreme Court said that the genes could not be patented, companies such as Ambry started offering the tests at a lower cost.
Rejecting Patent Trolls
Myriad then filed a patent for the process and the manufacture of the DNA primers that are completely manmade. However, the Appeals Court has denied both these patents as well. The court has said that the process of testing to find if a mutation exists in the gene is not new and any scientist asked to compare two genes to note differences would employ the same process.
The court essentially has said that the test used by Myriad to identify mutations is not an innovation because other scientists too would have used the same process even before Myriad patented it.
The court also rejected the claim that Myriad had developed the DNA primers, saying that were identical to the DNA found in nature so that they could attach to them. As such there was no invention involved. When it comes to natural substances, the court has ruled that only the presence of human intervention is not sufficient to obtain a patent. If human intervention is used to produce a substance that is found identically in nature, then the human intervention cannot justify the patent on the substance.
Patents are granted to innovators and companies to encourage them to spend on research and development. The patent period enables the companies to profit from their innovations. However, in order to obtain a patent, the applicant has to prove innovation, that is, show that they have produced a new substance or developed a new process. While patents for physical objects are easier to prove, proving innovation when it comes to intellectual property can be more difficult.
Obtaining and Protecting Patents
When a person or business develops a new product or process they need to apply for a patent. If you have developed a new product or innovation you need to retain the services of a patent lawyer who can describe the unique features of the product and help you file the patent application with the patent office. The patent lawyer should have expertise in both patent law and scientific terminology in order to understand and explain the unique characteristics of the product or process being patented.
Additionally, if some other business or person starts producing copies of your product or innovation, your patent attorney will file a case against them to stop production and sale of the copied products. In order to prove the patent, the patent lawyer will have to show that the innovation is unique and is not a natural product or process. But that was not the case here.
Not Quite Myriad
There is nothing wrong with competition. Myriad’s attempts to patent a test has been undermined and it appears humanity will come out on top because of this decision. Tests should not be patented; unique ideas and discoveries should.