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

November 03, 2010



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.


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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