Supreme Court Hears Gene Patent Case; Activists Rally on Courthouse Steps

Posted by Pete Shanks April 18, 2013
Biopolitical Times

On Monday, April 15, the U.S. Supreme Court held its hearing on the Myriad gene patent case. Their ruling is not expected until June, and it's hard to tell what that will be. It's not inconceivable that, as with the healthcare decision last year, the court will come up with a creative and unexpected approach, which might lead to a narrow rather than sweeping ruling. These sample headlines give a sense of the initial reactions:

Justices Seem Wary of Bold Action in Gene Patent Case
(New York Times)

Supreme Court critical of patents on human genes
(Los Angeles Times)

High Court Justices Seek Compromise in Gene-Patent Case

Supreme Court skeptical of patent on breast cancer gene
(USA Today)

Jacab Sherkow at the Stanford Law and Biosciences blog had perhaps the most detailed review of the oral arguments, which he called "wide-ranging — and often-times confusing." He noted that some of the justices seemed to have difficulty with basic genetics, and tended to cling to analogies of dubious applicability. Bravely, he concluded:

I count at least five votes decidedly on board to invalidate Myriad's claims: Chief Justice Roberts, and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.

As to the rest, he placed Alito and Breyer stalwartly in Myriad's camp, pegged Thomas as even-handed on patents, and "all bets are off when it comes to Justice Scalia and anything scientific."

Outside the Court, Breast Cancer Action (BCA) — one of the plaintiffs in the case — held a rally in support, which CGS had endorsed. The next day, BCA's Karuna Jaggar appeared on HuffPost Live in an entertaining debate: The host was amazed (and professionally delighted) that a discussion of patents could come to a close with four panelists simultaneously trying to shout over each other.

Jaggar had cowritten a Los Angeles Times op-ed with CGS's Marcy Darnovsky that appeared the Friday before. The subtitle (adapted from a famous quote by Jonas Salk) sums up the plaintiff's point of view:

You can't patent the sun; why should you be able to patent human genes?

In a few months, we'll know how many justices agree.

Previously on Biopolitical Times: