Excerpted from an original posting on AIPLA Newsstand (Powered by Lexology), 4/23/13. 

Are human genes eligible for patent protection?  The Supreme Court heard oral argument in a case considering this question on April 15, 2013 (Assoc. for Molecular Pathology v. Myriad Genetics, Inc., U.S., No. 12-398, oral argument 4/15/2013).  The Association for Molecular Pathology argues that isolated DNA is an unpatentable “product of nature.”  Myriad argues that the claimed molecules are human-made inventions that fall squarely within 35 U.S.C. §101.  On review is the Federal Circuit’s 2-1 decision that Myriad’s patent covering isolated BRCA1/2 DNA molecules, used for diagnosing increased breast and ovarian cancer risk, are not ineligible for patent protection under 35 U.S.C. §101.  The panel agreed unanimously, however, on the patent eligibility of cDNA claims and the method claims directed to “screening” potential cancer therapeutics.  The Supreme Court’s questions suggested skepticism about eligibility for the claimed DNA molecules here but appeared to favor eligibility for cDNA claims, especially since patent eligibility for the extraction and isolation process was undisputed.