POSTED: Saturday, April 20, 2013 - 1:00pm
UPDATED: Saturday, April 20, 2013 - 1:04pm
NBC NATIONAL NEWS — Can human genes be patented?
That was the question before the Supreme Court Monday.
The issue could affect the availability of life-saving genetic medicine in the future.
Thousands of women are diagnosed with breast cancer each year in the United States, and a Utah company holds a key to detecting it.
Myriad Genetics isolated and patented two parts of DNA used to identify a risk for breast and ovarian cancer, giving the company a monopoly on all diagnostic tests related to the genes.
Now geneticist Harry Ostrer is challenging the patents he says limits access to life-saving research.
"Right now I can't offer testing to my patients," he says. "I can't develop a better way of doing genetic testing."
Breast cancer survivor Lisbeth Ceriani had to wait years for the test.
"I needed to have that testing so I could make medical decisions in order to keep myself healthy," she says.
Osterer and Ceriani are joined by a group of medical researchers, associations and patients who argue human genes can't be patented because they are a product of nature.
Patents only protect inventions, but attorneys for Myriad argue they did invent something by determining exactly what pieces of DNA to isolate.
"Without the incentive provided by patent protection, it's doubtful that these genes would have ever been created," says Myriad attorney Gregory Castanias.
In court a majority of justices signaled opposition to patents on human genes.
Chief Justice John Roberts argued "you don't have anything new."
Justice Sonia Sotomayor likened human genes to chocolate chip cookie ingredients, saying "I can't imagine getting a patent on the basic items of flour, eggs or salt."
Justice Stephen Breyer added myriad could patent "the use of it, but not the thing itself."
Now justices must weigh where nature ends and innovation begins.
A decision here could have broad implications.
The federal government has granted around 3,000 similar patents on genetic material in the past three decades.