Oskar Liivak, who teaches patent law and trade secrets and is professor at the Cornell University Law School, comments on today’s Supreme Court oral arguments in the case Association for Molecular Pathology v. Myriad Genetics.
Liivak says:
“Each side will make both doctrinal and policy-based arguments. The petitioners will attack the patent by arguing that a human gene – even after being purified and isolated from a human's genome – is nothing but an unpatentable product of nature. And they'll argue that such patents make bad policy as they block others from a critically important scientific resource.
“Myriad, the patent holder, will argue that purified and isolated human genes are not a product of nature. They will contend that the molecule they are claiming just does not exist without the intervention of an inventor. As to policy, they will argue that, absent protection, no one will have the financial incentives to look for and create these valuable scientific and medical resources.
“As to the policy question, the arguments are a draw as patent law has always faced a chicken-and-egg dilemma: to have access to inventions, someone needs incentives to create them. Yet, with the exclusive rights from patents creating incentives to invent, patents are thought to inherently prevent at least some access. Where to draw that line remains open question.
“As to the doctrinal arguments, especially in light of a recent related Supreme Court case, I would give the nod to the petitioners as Myriad's arguments rely too heavily on distinctions that could be too easily seen as exalting technical differences between the naturally occurring gene and the molecule they are claiming. In any event, it is a challenging and close question that is trickier and more subtle than most people would guess.”
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