As reported in the NY Times late yesterday, the Federal Government has reversed its position with regard to th eallowability of gene patents in an amicus brief filing in support of the court's decision in the Myriad BRCA case earlier this year.
“We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,” the brief said.
This is no small thing for the government to reverse a decades old position. It remains to be seen if the position in the government's brief will be immediately put into effect in the US Patent Office. The Patent and Trademark Office has issued thousands of patents on genes of various organisms, including on an estimated 20 percent of human genes.
In its brief, the government said it now believed that the mere isolation of a gene, without further alteration or manipulation, does not change its nature. The government does still support the notion that patents can be obtained for further manipulations of genes. The Times article suggests that lawyers at the USPTO did not agree with the goverment's position in its amicus brief but were overruled. No USPTO lawyers appear on the government's filing. Nothing like good solid consensus on a major policy issue.
Posted by Bruce Lehr October 2010.