Justices at odds over patents for human genes

It is a case at the intersection of science and finance, an evolving 21st century dispute that comes down to a simple question: Should the government allow patents for human genes?

The Supreme Court offered little other than confusion during oral arguments on Monday on nine patents held by a Utah biotech firm.

Myriad Genetics isolated two related types of biological material, BCRA-1 and BCRA-2, linked to increased hereditary risk for breast and ovarian cancer.

At issue is whether "products of nature" can be treated the same as "human-made" inventions, and held as the exclusive intellectual property of individuals and companies.

On one side, scientists and companies argue patents encourage medical innovation and investment that saves lives.

On the other, patient rights groups and civil libertarians counter the patent holders are "holding hostage" the diagnostic care and access of information available to high-risk patients.

Outside the court, several protesters held signs, such as "Your corporate greed is killing my friends" and "My genes are not property."

The justices asked tough questions, raising a number of colorful hypotheticals to explore the boundaries of patent law, including whether things like baseball bats, leaves from exotic Amazon River plants, and the human liver could get federal government protection.

"The patent law is filled with uneasy compromises, because on the one hand, we do want people to invent," said Justice Stephen Breyer. "On the other hand, we're very worried about them tying up some kind of whatever it is, particularly a thing that itself could be used for further advance."

Justice Anthony Kennedy noted Myriad made a significant investment in time and money in its genetic "discoveries" and might be allowed to have two-decade control over the genes for research, diagnostics, and treatment. "I just don't think we can decide the case on the ground: oh, don't worry about investment, it'll come" if there was no patent protection.

But Justice Sonia Sotomayor used a "chocolate chip" cookie analogy to say merely isolating naturally derived products would normally not get you a patent, only for the particular process or use of the cookie.

"If I combust those in some new way, I can get a patent on that," she said. "But I can't imagine getting a patent simply on the basic items of salt, flour and eggs, simply because I've created a new use or a new product from those ingredients."

The patent system was created more than two centuries ago with a dual purpose. One is to offer temporary financial incentives for those at the ground floor of innovative products like the combustible engine and the X-ray machine. The second is to ensure one company does not hold a lifetime monopoly that might discourage competition and consumer affordability.

All patent submissions rely on a complex reading of applicable laws, distinguishing between abstract ideas and principles, and more tangible scientific discoveries and principles.