A Patent on DNA? Top Court to Rule

Can someone else patent your genes? The Supreme Court is scheduled to rule some time this month on that question a suit filed against Myriad Genetics for its patent on the BRCA1 and BRCA2 gene mutations, which raise the risk of breast, ovarian and certain other cancers.

Opponents of patenting human DNA say a ruling in favor of Myriad will mean companies can own your genes, even though experts say it's more complicated than that. The patents set off a cascade of effects, opponents argue: it gives the company a monopoly on the test that can identify whether patients have the BRCA mutations so other companies can't offer their own tests as a second opinion. There's also no one to compete with the Myriad's $3,000 price tag on the test.

Myriad has long argued that it's not patenting anyone's genes. Instead, the company says, it separates them from the rest of the DNA and creates lab-made copies and that's what is patented and used in the test. The company has also licensed a few medical centers to run second-opinion tests.

But some say that regardless of how the court decides, it's likely the average person won't really be affected in any obvious, immediate way. Myriad's first 20-year patent on the genes runs out next year, although patent experts say the company has a variety of opportunities to extend that by a few years.

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"Even if the patents are thrown out today, that doesn't make the test available" since it would take time for other companies to develop a test, said John Conley, a law professor at the University of North Carolina at Chapel Hill who's taken a special interest in the case. "The patents are going to expire before any competitors could come into the field anyway.

"This case would have been a lot more important had it been decided 10 or 12 years ago," he added. "A lot of things have happened in law and science since then."

The science has now moved far beyond the clunky, whole-gene sequencing method that Myriad uses so it's becoming less relevant. Companies can now sequence your entire genome for you, and in a few years they might even be able to interpret the information in a meaningful way.

Others are working from the opposite end breaking the DNA sequences up into smaller, more digestible bits for analysis.

Myriad, the University of Utah and the U.S. government's National Institute of Environmental Health Sciences filed an application for the first patent on the BRCA gene mutations in 1994. The Patent and Trademark Office granted the patent on BRCA1 mutations in 1997. Another patent, on BRCA2, was granted in 1998.

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A Patent on DNA? Top Court to Rule