Ah, but you see, it's "this standard technique, but applied to the
BRCA1 gene" - that makes it a new technique.
At least, that's been the logic
for allowing claims for software for quite a while now.
Now, in recognition
of a faint actual point, applying it to BRCA1 and BRCA2 allows detection of
breast cancer, not just detection of a generic gene. Is that enough to make it
patentable? IANAL.
IANAL or geneticist but IIRC, having the
BRCA1/BRCA2 gene does not mean one has breast cancer itself. It is more correct
to say that having these genes are an indicator that an individual is
strongly(?) predisposed to developing breast cancer. Actions can then be taken
by the individual should they be predisposed as is indicated by having such
genes. I expect that's what Angelina did, had this gene identified and took
action to remove the risk.
Identifying that BRC1 & BRC2 genes make an
individual predisposed to develop breast cancer was rather difficult work as was
acknowledged by the SCOTUS but it was still inelligable subject matter as they
found. Sweat of the brow is not patentable as PJ put it.
The techniques for
isolating this or any gene is very old and very known, so one could not get a
methods patent on the process of isolation. The fact that the gene defines some
predisposition is also irrelevant as the technique for isolating a gene is the
same regardless of what gene we choose to isolate.
But patent law and
having lawyers involved, it's any ones guess as to how far they wedge their
arguments into the cDNA/methods crack that SCOTUS seemed to have left open. [ Reply to This | Parent | # ]
| 
