1. An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2.
2. The isolated DNA of claim 1, wherein said DNA has the nucleotide sequence set forth in SEQ ID NO:1.
5. An isolated DNA having at least 15 nucleotides of the DNA of claim 1.
6. An isolated DNA having at least 15 nucleotides of the DNA of claim 2.
In May 2004, the European Patent Office revoked Myriad’s patents. The removal of the patents, an almost unprecedented event in patent history, came because the Europeans decided that while Myriad had figured out the composition of key genetic sequences, it had not done enough to meet the "inventiveness" standard required of a patent.
In other words, even though the company had figured out hundreds of the key genes involved with a higher risk of breast and ovarian cancer, they had not invented anything. Rather they had simply found something already existing in nature.
What else are they adding to the world besides the knowledge that breast cancer and BRCA mutations are related?
This is not to suggest that § 101 has no limits, or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, 409 U. S. 63, 409 U. S. 67 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 333 U. S. 130 (1948); 56 U. S. 112-121 (1854); 55 U. S. 175 (1853). Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are "manifestations of . . . nature, free to all men and reserved exclusively to none." Funk, supra at 333 U. S. 130.
What are gene patents?
The U.S. Patent and Trademark Office (USPTO) grants patents on human genes, which means that the patent holders own the exclusive rights to those genetic sequences, their usage, and their chemical composition. Anyone who makes or uses a patented gene without permission of the patent holder – whether it be for commercial or noncommercial purposes – is committing patent infringement and can be sued by the patent holder for such infringement. Gene patents, like other patents, are granted for 20 years.
For example, Myriad Genetics, a private biotechnology company based in Utah, controls patents on the BRCA1 and BRCA2 genes. Because of its patents, Myriad has the right to prevent anyone else from testing, studying, or even looking at these genes. It also holds the exclusive rights to any mutations along those genes. No one is allowed to do anything with the BRCA genes without Myriad's permission.
"We have rights to 23 granted U.S. patents which cover a number of important aspects related to the detection of mutations in the BRCA1 and BRCA2 genes. These patents cover not only isolated gene sequences, but also methods of isolating, analyzing and detecting mutations."
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