Utah firm's gene patent case could go to Supreme Court
Myriad Genetics • Utah company holds title to two DNA bits related to cancer.
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Groups fighting to overturn patents related to human genes held by Utah's Myriad Genetics said Wednesday they will take their case to the U.S. Supreme Court, and a law professor said they have a good chance of getting the nationally significant issues heard.

The American Civil Liberties Union and the Public Patent Foundation said Wednesday they will petition the Supreme Court to overturn a lower court decision and rule that Salt Lake City-based Myriad Genetics cannot hold patents on human genes related to breast and ovarian cancers.

The two groups are seeking to overturn a July decision by the U.S. Court of Appeals for the Federal Circuit that said Myriad could hold the patents related to two genes, the mutations of which are responsible for most cases of hereditary breast and ovarian cancer. Myriad sells a test to detect the mutations, the outcome of which can help guide doctors' decisions about treatment.

The ACLU said it planned to file a petition with the high court by a December deadline. Myriad Genetics also said Wednesday it is weighing whether to file its own petition concerning an aspect of the Federal Circuit ruling.

Kenneth Chahine, a visiting professor of law at the University of Utah who has followed the case closely, said it has a good chance of being accepted by the high court justices, who decline to hear most appeals filed with it. The national profile of the issue and the fact the court already has agreed to hear a somewhat similar case involving patents might give it more reason to decide the Myriad case, he said.

"I would say the ACLU probably has a better chance at the Supreme Court than they do at the Federal Circuit," Chahine said. "It's not unusual for the Supreme Court to disagree, or at least partially disagree, with the Federal Circuit."

The ACLU and the Patent Foundation in May 2009 sued Myriad and the University of Utah Research Foundation — which licenses some of the patents in question to the company — on behalf of researchers, genetic counselors, patients, women's health groups and scientific associations.

They argued that genes are products of nature and can't be patented, and that such a practice restricts research and patients' access to medical care, violating the First Amendment of the U.S. Constitution. Myriad argued it was not directly patenting genes in the human body but rather after they had been extracted and isolated, and that those methods were eligible for patents.

A U.S. District Court judge in New York sided with the ACLU and others. But the Washington, D.C., appeals court overturned that decision in a 2-1 ruling.

"Myriad's monopoly on the BRCA genes allows it to set the terms and cost of testing and makes it impossible for women to access alternate tests or get a comprehensive second opinion about their results," the ACLU said in a news release about its decision to petition the Supreme Court. "It also allows Myriad to prevent researchers from even looking at the genes without first getting permission from Myriad."

Rebecca Chambers, spokeswoman for Myriad, said the ACLU decision was not a surprise and the company was still weighing whether to appeal part of the Federal Circuit decision having to do with whether any of those who sued could show they had been harmed in some way by Myriad holding the patents.

tharvey@sltrib.com

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What's at stake

Myriad holds patents related to two genes, the mutations of which are responsible for most cases of hereditary breast and ovarian cancer. It sells a test to detect the mutations. Critics argue that such a practice restricts research and patients' access to medical care.