The sequence is found in nature, also. It’s like the Devil’s Tower, from the iconic scene in Close Encounters. There’s no natural boundary around it, so when we make maps or other ways to find it we must make boundaries. It’s the same type of “isolation and purification” that is being done with genes. It’s not inventive. Don’t worry, though, they can still patent the test itself without patenting the gene sequence. That’s what ought to have been in the first place.

I appreciate your comment on this issue. You argue that an isolated, purified form of a gene should not be patentable even though that isolated and purified form of the gene does not naturally occur in nature because it would have been obvious to one of ordinary skill in the art in light of the naturally occurring non-purified, non-isolated form of the gene.

I admit that I am not a geneticist and thus not one of ordinary skill in the art. What I do know is that this issue would surely have been raised in the Patent Office during prosecution of any patents claiming these isolated, purified genes. The Patent Office obviously disagreed with your position in these applications.

The plaintiffs in this case (assuming they all have standing to do so) are free to raise this issue in court. They can certainly argue that the isolated, purified gene claims should be invalidated as being obvious to those of ordinary skill in the art. And perhaps the claims are obvious.

My point, however, is that this is not the approach being taken by the ACLU and other plaintiffs. The approach they have chosen to take is to inflame the public by calling such patents unconstitutional and violative of basic human rights. Their goal here is not to win these cases in Federal court, but to instead win these cases in the court of public opinion by using misinformation and inflammatory rhetoric regarding the patent system.

Matt

It is like saying that Plutonium is patentable because it must be isolated and purified from Uranium.

Not all of Myriad’s claims will be invalid, and they will still have protection on the test as a whole, but they won’t be able to bully researches studying breast cancer (as they have been) into shutting down their research or paying unnecessary royalties for doing basic science.