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« Court Report | Main | Consortium Launches Public Database of BRCA Data »

July 01, 2013


It would appear that if DNA cut or removed from the genome is not patentable (two covalent bonds are broken), then all natural products, especially ones that are simply purified and not chemically altered in any way, are similarly also not patentable. That would seem to apply to, e.g., erythropoietin, TPA, taxol, a GCPR, a newly discovered small molecule compound in the metabolome & etc.

Some bacterial and and other microbe genes do not have introns, none of those DNAs would appear to be patentable. Therefore, why the distinction, if there is one, between cDNAs and some native DNAs?

If the Myriad holding does not apply to other natural products, then is the distinction based on the amount information that DNA has relative to what information that proteins and small molecules have? Or, does the distinction arise because DNA can be self-replicated while other natural products cannot? If either/both of those constitute the explanation, then where did those distinctions come from?

Regarding some of the comments, it was the case that Myriad's stock rose on the day the decision became public. Analysts looked at Myriad's portfolio and concluded that the decision would not affect their business. Other patents and claims were still valid and deemed adequate to maintain business as usual.

Time will tell if this amounts to the smashing game changer the anti-patent folks claim to see. Arguably, its as clear as mud. If one is forced to into a bet, it is reasonable to go with the people who were highly incentivized to get their analysis right. They looked at Myriad's whole portfolio and the court decision and then decided to buy Myriad stock. Real money was on the line and money talks.


1) Stock rose - and then fell - and still has not regained its pre-decision level.

2) Why would you think the rule of law does not apply to other natural products? It is baffling to read such comments.


I think the Supreme Court distinguished based on two simple metaphors they had for what is going on within the complex biochemistry:

1) Plucking a leaf from a tree
2) Synthesizing a baseball bat by machine lathing of the wood taken from the tree.

For more of an analysis, see here:

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