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“US Supreme Court rules that human genes cannot be patented” is the headline that millions of people around the world will be reading today, after the US Supreme Court issued its decision yesterday (13 June 2013) in the ‘Myriad case’.
However, the headline for the general populace is quite different to the take-home message for those in the biotechnology community and for patent attorneys in particular. Whilst there is no doubt that some patents exist to human genes (although never in so far as they encompass a natural gene within a human being – a popular misconception in the press), patent attorneys have understood for a long time that patent offices, such as in the US and Europe, have not granted such broad patents for many years – the patentability requirements are simply too tough to obtain broad gene sequence claims in the modern era. In fact, the results of ‘the human genome sequencing project’, which opened up the possibility for people to easily try to claim human gene sequences has, in fact, made that prospect far harder. People have never needed to worry that ‘their’ genes might be patented by someone else.
In yesterday’s decision it was held that a naturally occurring DNA sequence is a product of nature and not patent eligible in the US, but a cDNA sequence is patent eligible provided it does not occur naturally.
So what would be a more realistic headline to this latest US decision? Well, fortunately for all concerned, the headline is probably not so dramatic as that stated above! We need to take a couple of steps back to understand the outcome of this latest decision.