Will Gene Patents Impede Whole Genome Sequencing?: Deconstructing the Myth That 20% of the Human Genome Is Patented

During oral arguments before the Court of Appeals of the Federal Circuit in Association for Molecular Pathology v. US Patent and Trademark Office (AMP v. PTO), a high-profile lawsuit challenging the validity of so-called “gene patents,” Judge Bryson asked the attorney representing Myriad Genetics (owner of the specific patents under attack) whether the company's patents would be infringed by the sequencing of an individual's genome. The attorney did not seem to have previously considered the question, but ventured that in his view whole genome sequencing (WGS) would not constitute infringement because Myriad's patent claims are directed towards isolated genes, not the entire chromosome. Later during the proceedings, the ACLU attorney representing the plaintiffs begged to differ, offering up his opinion that Myriad's gene patents, particularly claims directed to “isolated DNA that codes for the BRCA polypeptide,” would in fact be infringed by WGS.