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« IPO Files Amicus Brief in AMP v. USPTO | Main | Biotech/Pharma Docket »

November 03, 2010

Comments

Kevin,

One argument I haven't seen in Myriad's or the amicus briefs would be based on what steps were required by Myriad to "isolate" the BRCA 1 & 2 sequences. I'm willing to bet that "mother nature" can't or doesn't do those steps. If "mother nature" can't duplicate the steps required to "isolate" the BRCA 1 & 2 sequences, then how can those sequences be a "product of nature"?

Although some gene patent proponents argue that it's about legal precedent and reliance, I honestly think that this is one of those issues that is largely about one's politics and policy. Whether or not human genes are legally patentable is a question rather like the "if a tree falls in the forest" hypo. I've noticed that most biotech proponents, in particular, base their pro-patenting contentions on policy arguments, rather than on legal ones -- perhaps because there is no real legal answer. That being the case, although I'd like to read a Supreme Court opinion deciding this issue, perhaps this is really one for Congress to deal with.
http://smallbusiness.aol.com/2010/05/10/how-to-file-a-patent/

Kevin,

Let me qualify my comment. The Myriad and AIPLA briefs do point out generally the steps required to get the claimed "isolated" the BRCA 1 & 2 sequences. Even so, an explicit run down of those steps, perhaps using a flowchart might get the point across more clearly that "mother nature" didn't do and can't do what Myriad did.

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