Association for Molecular Pathology v. Myriad Genetics, Inc. (12-398)

argument 12-398

Association for Molecular Pathology v. Myriad Genetics, Inc.

Supreme Court of the United States 1h 6m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the case and who are the parties involved in this Supreme Court argument?

John G. Roberts 0:02

We'll hear argument first this morning in case twelve three hundred and ninety eight, Association for Molecular Pathology versus Myriad Genetics. Mr. Hansen.

David Boies 0:11

Mr Chief Justice, and may it please the court. One way to address the question presented by this case is what exactly did Myriad invent? And the answer is nothing. Myriad unlocked the secrets of two human genes. These are genes that correlate with an increased risk of breast or ovarian cancer. But the genes themselves, they're where they start and stop. What they do, what they are made of, and what happens when they go wrong are all decisions that were made by nature, not by myriad. Now Miriad deserves credit for having unlocked these secrets. Myriad does not deserve a patent for it.

John G. Roberts 0:52

Respondents say that isolating or extracting natural products Has data has long been considered patentable and give examples were aspirin and looping clock vaccine. How is this different from those start with natural natural products?

David Boies 1:13

Well in in essence, Your Honor, everything starts with a natural product and this court has said repeatedly that just extracting a natural product is insufficient. For example, this court has used the example of gold. You can't patent gold because it's a natural product. The examples that you cite all involve further manipulation of a product of nature, so that the product of nature is no longer what it was in nature, it's become something different and in many instances it has taken on a new function.

John G. Roberts 1:40

Do you uh dispute that you can patent, however, to process for extracting naturally occurring Things

David Boies 1:48

of course. I think that is totally acceptable. And what's interesting in this case is the process that Myriad uses to extract the genes is not at issue in this case. It's a process that's used by geneticists every day all over this country. It is routine, conventional. So

John G. Roberts 2:03

isn't that why isn't that a way to in effect have patent protection for the product? Does somebody who wants to use the product, the DNA, extracted DNA in this case, have to find a new process from to extract it if they want to uh have it available?

David Boies 2:20

Well the the process by which it's extracted is now very routine.

John G. Roberts 2:23

Oh no, yeah, I know. I'm assuming it isn't, that they discover this process and uh it leads to a uh particular product, does anybody who wants to use the product either have to get a license for the process or find a different way of extracting it?

David Boies 2:39

I think they have to find a different way of extracting in the same way that finding a m method of extracting gold does entitle you to a patent on the method of extracting gold. It may also entitle you to a patent on the use of gold. For example, if you find a new way of using gold to make earrings. Or if you find a new way of using DNA to do something, you may be entitled to a patent on that. But the fact

Elena Kagan 3:00

that you tell me why their test wasn't given a patent. I know the method of extraction wasn't and why. Why would the test would the tests be subject to a patent?

David Boies 3:11

The tests are also routine and conventional uh science. But in this particular case, there were some method claims that we challenged. The method claims in this case involved taking the gene that you extracted from the woman and the gene that you the way you think it should be, and simply looking back and forth to see if they're the same or different. and the Federal Circuit that found that that was an abstract idea and not patentable. Um

Samuel A. Alito 3:35

and in fact what I'm curious as to why the uh the methodology of extracting the gene has not been patented. You say everybody h everybody uses it. Why was that patented?

David Boies 3:47

The origin the original methodology was patented. I uh and and is is patentable pro in fact it came up with a new process it would be patentable. But it is but that it has been very freely licensed. In fact the patent may now have expired, and so it is used all over the country every day.

Samuel A. Alito 4:02

Could I take you back to to Justice Ginsberg's question because I Uh yeah, I don't I'm not sure you got it what troubles me about that. Suppose there is uh a substance, uh a a chemical a molecule in the the leaf the leaves of a plant that grows in the Amazon, and it's discovered that this has tremendous medicinal purposes.