Supreme Court to Consider Whether (Isolated) Human Genes are Patentable

On November 30, 2012, the U.S. Supreme Court agreed to decide a case presenting the seemingly simple, but legally complex, question, “Are human genes patentable?” After Bilski v. Kappos, 130 S. Ct. 3218 (2010) and Mayo Collaborative Services v. Prometheus Laboratories Inc., 132 S. Ct. 1289 (2012), this grant of certiorari represents the third time in recent years that the Supreme Court will assess the scope of patentable subject matter under 35 U.S.C. § 101.

The patents at issue in the case, held by Myriad Genetics, Inc. (Myriad), pertain to technologies for assessing a woman’s risk of breast and ovarian cancers and making clinical decisions on prophylactic courses of action, based on the discovery that mutations in the human BRCA1 and BRCA2 genes are associated with a greater risk of these cancers. The patents include claims directed to isolated DNA for BRCA1 and BRCA2.

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