And though the ACLU's stated goal is to abolish all gene patents, legal experts consulted by DOTmed News don't think it's likely to affect patents on genetically-engineered organisms, where information contained in the modified genes is, by definition, different from what is found in nature.

"Tragedy of the anticommons"

The lobbying group BIO, which filed an amicus brief with Myriad, said they were pleased the ruling did not touch the explosive issue of whether the patent office stepped on the public's First Amendment rights in issuing the gene patents, as the plaintiffs had argued; and the court chose not to discuss deeper questions about the social effects of gene patents.

"Disputed allegations that patents supposedly stifle research or impede patient access were explicitly excluded from consideration," CEO Greenwood said.

Nonetheless, for many, at issue is not merely the question of whether isolated genes are products of nature, but the larger one of whether by patenting them, the biotech industry creates non-competitive monopolies that restrict access to needed health care. Another issue: that strong intellectual property protections may thwart innovation by making advanced genetic research, which frequently involves using many genes, next to impossible without hacking through what some call the "patent thicket," a disorder of competing legal claims. For instance, co-plaintiffs to the case included women who said they couldn't afford the tests, which run upward of $3,000 per test. But in Canada, which doesn't recognize Myriad's patents, the tests are one-third the price, according to the judgment.

The Public Patent Foundation, which jointly filed the suit, says about 20 percent of human genes are patented, many of which are related to illness.

But the pro-patent groups say that patent rights are necessary to spur innovation in genetic research that could one day usher in an age of personalized medicine: where patients get individualized treatment based on their genetic makeup. Without the financial incentives of the patent, research would dry up, they argue.

Discovery and recovery

"One thing that's easy to forget: when you're in medical technology, especially anything related to pharma, the big cost is not discovery, it's post-discovery; it's research to find out whether something is of any value," John Calfee, a scholar at the American Enterprise Institute, a free market think tank, tells DOTmed News.

He says that without the promise of royalties provided by patent protection for genetic research many companies might not undertake the staggering cost of clinical trials to see whether a gene is diagnostically useful.

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