Regarding Patent Protection Strategies:
Myriad Genetics, a Utah based biotech company, held a patent on the isolated form of genes that can predict an increased risk of cancer. Many researchers and geneticists claim that this single company’s patent raised costs, restricted research and often forced women to remove breasts and ovaries without the ability to get second opinions using this cancer-predicting method.
Recently, Myriad lost its patent rights on the BRCA1 and BRCA2 genes that held so many hostage. The Supreme Court ruled unanimously that human genes cannot be patented in this case because Myriad did not invent the human gene (see Bilder, Book of Genesis). The decision has both immediate benefits for some breast and ovarian cancer patients and repercussions for biotechnology research. The decision should lower costs and increase access to genetic testing for many people while it allows for other scientists and laboratories to provide genetic diagnostic testing without being hindered by Myriad’s patent.
“Myriad did not create anything.” Judge Clarence Thomas wrote. “To be sure, it found an important and useful gene, but separating that gene from the surrounding genetic material is not an act of invention.”
Similarly, Cook Alex puts patent protection strategies into effect that provide its clients with a range of defensible claims so that even if the broadest claims become vulnerable to attack, other meaningful claims will survive.
Myriad can hardly be faulted for crafting patent claims as broadly as the law allows. Sure, Myriad’s patent here was eventually validated, but it was a close enough call that it took going to the Supreme Court to decide it. To its credit, Myriad has encircled its technology with several other patents of varying breadth to give it assurance that at least some important claims will survive. Myriad continues to hold 24 patents on cDNA, which is not naturally occurring, of which 500 valid claims remain in effect.
Sources: “Justices rule human genes cannot be patented” USA Today, Richard Wolf (read further here) and “Supreme Court Strikes Down BRCA Gene Patent” ABC News, By ARIANE DeVOGUE (read further here). Photo credit of Supreme Court building: CC-BY-SA-3.0 Matt H. Wade at Wikipedia
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