February 01, 2011
In March 2010, a U.S. district court ruled that isolated DNA and inventions that use isolated DNA are not eligible for patenting. The ruling resulted from a lawsuit against Myriad Genetics, a company that patented the BRCA1 and BRCA2 genes, genes associated with increased risk of breast cancer and ovarian cancer. The decision is currently under appeal to the Federal Circuit and a decision is expected in 2011.
Bio Business asked three Canadian lawyers about the case, including Karen Townsend.
Bio Business: How should Canadian biotech businesses look at the Myriad debate?
Karen: From a purely patent point of view, nothing is going on as far as the Canadian Intellectual Property Office is concerned. It is not, as far as I know, re-evaluating whether it should be allowing genes to be patented. Canada marches to the beat of its own drum when it comes to what the CIPO decides is patentable subject matter and what isn't.
There is, of course, the business side of things, and what happens in the United States is crucial to Canadian businesses for a couple of reasons. One, because all Canadian companies aspire to have their products made and sold not only in Canada, but also in the United States. So if you’re going to enter the U.S. market, you need U.S. patent protection. And two, from a funding perspective, Canadian companies are always looking for additional funding. There's no such thing as too many opportunities for funding. They're looking south of the border for opportunities and the first thing anybody doing their due diligence is going to say is, "Let's see your patent portfolio." U.S. patents will be key for that.