On Sunday, December 14, 2014 9:58:49 AM UTC-8, Cathal (Phone) wrote:
I don't think that is correct. The way I understand it is that the main distinction is between naturally occurring genes, versus engineered genes. Interestingly, cDNA and codon optimized genes would theoretically be patent eligible according to the latest decision, because they do not occur in nature:
http://en.wikipedia.org/wiki/Association_for_Molecular_Pathology_v._Myriad_Genetics
-- My understanding is that the SCOTUS verdict is regarded as not really applying outside human genes (yet), but that's just a vibe I'm getting.
I don't think that is correct. The way I understand it is that the main distinction is between naturally occurring genes, versus engineered genes. Interestingly, cDNA and codon optimized genes would theoretically be patent eligible according to the latest decision, because they do not occur in nature:
http://en.wikipedia.org/wiki/Association_for_Molecular_Pathology_v._Myriad_Genetics
The majority opinion delivered by Thomas held, "A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring."[40] In Part III of the majority opinion, Thomas wrote:
In his concurring opinion, which relates to the scientific details in the majority opinion,[39] Scalia wrote:
It is important to note what is not implicated by this decision. First, there are no method claims before this Court. Had Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. But the processes used by Myriad to isolate DNA at the time of Myriad's patents "were well understood, widely used, and fairly uniform insofar as any scientist engaged in the search for a gene would likely have utilized a similar approach," 702 F. Supp. 2d, at 202–203, and are not at issue in this case.
Similarly, this case does not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes. Judge Bryson aptly noted that, "[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications of that knowledge. Many of its unchallenged claims are limited to such applications." 689 F. 3d, at 1349.
Nor do we consider the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. Scientific alteration of the genetic code presents a different inquiry, and we express no opinion about the application of §101 to such endeavors. We merely hold that genes and the information they encode are not patent eligible under §101 simply because they have been isolated from the surrounding genetic material.[40]
Similarly, this case does not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes. Judge Bryson aptly noted that, "[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications of that knowledge. Many of its unchallenged claims are limited to such applications." 689 F. 3d, at 1349.
Nor do we consider the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. Scientific alteration of the genetic code presents a different inquiry, and we express no opinion about the application of §101 to such endeavors. We merely hold that genes and the information they encode are not patent eligible under §101 simply because they have been isolated from the surrounding genetic material.[40]
In his concurring opinion, which relates to the scientific details in the majority opinion,[39] Scalia wrote:
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.[40]
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