Friday, June 14, 2013

Game of Patents: Myriad Genetics, a loss?

Is the decision made by the US Supreme Court a great victory?  Or is the decision just part and parcel of what I call the Game of Patents?  The media would have us believe that this decision ends once and for all this patenting on life.  Justice Clarence Thomas wrote the opinion for the Court and the decision was unanimous.  Myriad Genetics' patents on the BRCA 1 and BRCA 2 genes were struck down.  After this decision was made, "Shares of Myriad Genetics popped nearly 11% to a four-year high,"  according to

Curious, curious indeed.  Why would their stock rise? If this was a great victory for those opposed to patents on life, wouldn't Myriad's stocks fall? What does this decision really mean?  So I decided to play Sherlock Holmes and let you the reader, be Watson.

What do we know about Myriad Genetics?  Well I do know that Myriad Genetics partnered with Monsanto in 1998 in a licensing agreement.

Myriad owns some 90 patents (not sure how many applications for patents).  But I don't know which patents were struck down.  From media reports it was patents that would have run out in 2015.  Patents have a life of 20 years.  So it would have been patents filed in 1995.  There are 5 or 6 patents filed in that time frame.  Would all of them been struck down?  Wouldn't it depend on the patent?  For instance patent # 5710001 of Myriad Genetics claims a method used to isolate and detect a human breast and ovarian cancer predisposing gene.  This particular patent is not only owned by Myriad but also by the University of Utah Research Foundation, and the United States of America, as represented by the Secretary of Health.   Yes, the US Government has partial ownership in this patent.   I can't imagine the US Supreme Court going against the business interests of the US Government.  I imagine that this particular patent was not one of the patents struck down.  But I don't know, since no article that I read listed the patents that were struck down.  How is it that Justice Clarence Thomas, ex-lawyer for Monsanto, is allowed to write the opinion of the court;  when it appears to me that Myriad is/was partnered with Monsanto in a licensing agreement?  It would seem to me that such a situation would require a judge to recuse himself from the case.  

Does this change what has been going on with human milk component patents and gene technology?  Most patents on human milk components are patents on genetically engineering the DNA.  The Supreme Court decision allowed Myriad to keep the patents that involved cDNA (genes that are genetically engineered).  Even the Nestle patent (the one in the petition I started) made dual claims.  Meaning they also claimed the genetically engineered component, not just the real component.  Will this stop the hunt on human genes and commercialization of products?  Don't think so.  This decision supports genetic engineering of life and its commercialization.  Yes, corporations will not be allowed to claim ownership of your genes.  But patents are a marketing strategy, thus your genes are still part of the game.  Only corporations will call those claims methods, and will call the rearrangements of those genes, corporate invention.  Will we recognize the dangers inherent in rearranging genes? Particularly when there is legally approval of genetically engineering your genes?  So is the Supreme Court decision a great victory?  Where lies the truth?

As Sherlock said to Watson, " when you have eliminated the impossible whatever remains, however improbable must be the truth." 

~~Valerie W. McClain~~