The unanimous June 13 decision by the U.S. Supreme Court is a big deal. The court struck down “naturally occurring DNA” as unpatentable, but left open the possibility of “synthetically created” DNA as patentable subject matter. But the fight against corporations owning DNA rights is not over. Although protesters have lowered their signs, some may have missed the mark.
Myriad Genetics owns “process patents” detailing specific processes for testing patients’ genes for cancer susceptibility. Undoubtedly, many similar patents will come from Myriad and its competitors. The court decided whether the DNA itself could be patented, but solidified the concept that the methods for testing and analyzing DNA, as well as the creation of certain strands of cDNA (synthetic DNA), are patentable.
What result? Myriad and its competitors can still own the rights to exclude others from utilizing certain DNA testing methods. The effect of the court’s ruling, which largely underscored the eligibility of method claims surrounding DNA, as well as utility claims surrounding cDNA, is not completely redeeming.
Although the court finally determined that manipulated DNA is unpatentable, the court’s decision begs the question whether the government should protect intellectual property rights for methods of testing human DNA. The war is not yet won.