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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Supreme Court: Human genes cannot be patented

We often use this blog to discuss some of the challenges that Colorado entrepreneurs face when it comes to protecting their business. One of the ways in which this can be accomplished is by patenting a specific product, process or solution. Patents and other types of intellectual properties can give rights to or ownership of an invention to one party. Patenting an invention means that it becomes publicly disclosed information, but no one else has the rights to use the patented material without permission.

Until recently, one company held some valuable patents. Myriad Genetics held the patents to two genes that can help people identify their risk of developing breast cancer. However, the U.S. Supreme Court recently handed down a ruling that could have a dramatic effect on Myriad and other genetic testing companies. The Supreme Court ruled that genes could not be patented. 

Before this ruling, Myriad was the only company that could test for mutations in the BRCA1 and BRCA2 genes, which would identify a patient’s elevated risk for developing breast cancer. They charged $4,000 for their testing and had no competition.

After the ruling, however, multiple genetic testing companies have announced that they will start offering tests on the two previously-protected genes. Sources believe that this will create competition in the marketplace, essentially lowering the cost for consumers.

While the ruling may have had a negative impact on Myriad’s business, it has opened up the field to other testing companies who were not legally permitted to test for mutations on the patented genes.

Figuring out if something can be patented can be very tricky. It may also not be in a company’s best interest to pursue patents. But in many cases, discussing the legal options available for protecting a company’s products can be very beneficial for business owners. 

Source: The New York Times, “After Patent Ruling, Availability of Gene Tests Could Broaden,” Andrew Pollack, June 13, 2013

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