From Bio Journal - August 2013

Closeup: Two recent court cases on gene patents

On 13 June 2013, the Supreme Court of the United States ruled in a trial concerning hereditary (genetically predisposed) breast and ovarian cancer that it would not recognize genes that existed in the natural state.

The trial was over patents taken out by Myriad Genetics, Inc. on the genes BRCA1 and BRCA2. Genetic diagnostics are becoming popular, since it is possible to tell if a person is predisposed to breast of ovarian cancer by screening for these genes. Note the recent case of the actress Angelina Jolie, who created a stir when she decided to have her breasts removed preventively because there was a high probability that she could suffer from breast cancer in the future.

Patents, however, were originally intended as a right given for the invention of some industrial product. From this notion, it is clearly strange that a patent should be given for a gene that exists in nature. The payment of high patent fees to the company owning the patent rights each time a screening test is carried out have been questioned, and thus the trial was instigated.

Concerning the trial, Myriad Genetics, Inc. has stated that the genetic screening tests for breast and ovarian cancer are protected by a further 24 patents and that therefore no impact would occur. (Bloomberg 2013/06/13)

The focus of the trial was on how far patents on genes would be recognized. The verdict was the utterly respectable judgement that patents on genes that exist in nature would not be recognized, but at the same time the court gave its approval to the patenting of composite genes, such as recombinant genes.

It is thought that this will have a great impact. There are many cases of farmers being sued by biotech companies over GM crops, and this decision will put wind in the sails of this trend.

Immediately before the verdict in this trial, the Supreme Court of the United States handed down a verdict recognizing Monsantofs claim in a breach of patent trial. Indiana farmer Vernon Bowman sowed and cultivated soy seeds he had purchased from a grain elevator company, but mixed in with the seeds were herbicide tolerant soy for which Monsanto held the patent. Monsanto therefore took Bowman to court for breach of patent for having cultivated and harvested the soybeans. Bowman claimed that he had purchased the seeds legally from the grain elevator and that therefore Monsantofs patent rights did not apply. On 13 May 2013, the Supreme Court stated that the patent applied since by cultivating and harvesting the soybeans a copy had been made of Monsantofs patented technology, and handed down a verdict that recognized Monsantofs claim. (RT USA 2013/05/13)

These trials over genetic patents give a boost to the patent rights on GM crops held by Monsanto and others, and there is concern that the rights of farmers to farm will be placed in danger with increasing frequency.

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