A federal appeals court has overturned a lower court ruling and ruled that patents of genes are legal:

A federal appeals court affirmed the right of Myriad Genetics to patent two genes linked to breast cancer, overturning a lower court ruling that threatened a key element of the biotech business.

The U.S. Court of Appeals for the Federal Circuit in a ruling on Friday backed Myriad’s right to patent two “isolated” human genes — BRCA1 and BRCA2 — that account for most inherited forms of breast and ovarian cancers.

………

The appeals court said the genes isolated by the company can be patented because Myriad is testing for distinctive chemical forms of the genes, and not as they appear naturally in the body.

One member of the three-judge appellate panel dissented, saying that despite Myriad’s process of isolating a human gene it still could not be patented.

………

The appeals court also said that Myriad’s method for screening potential therapies was patentable.

The judges did, however, agree with the district court that Myriad’s method of analyzing DNA sequences did not involve sufficient transformation, and thus could not be patented

I’m not surprised. This is the Court of Appeals for the Federal Circuit, a body that was created specifically to rule on patents, and they, under the “when all you have is a hammer, everything looks like a nail” theory, are insanely pro patent.

How insanely pro patent? They are assuming patently false facts to justify their ruling:

Bruce Wexler, a patent expert at the law firm Paul Hastings, said the ruling means the appeals court has recognized that DNA takes on a different molecular structure when it is isolated and removed from the body.

“That is a very significant result that is very important to the biotech industry,” Wexler said.

This is scientific bullsh%$. DNA is DNA is DNA is DNA, whether in vivo or in vitro.

Here’s hoping that the Supreme Court or the full appeals court (unlikely, see my hammer nail argument), and it gets slapped down.

SCOTUS has issued a number of “what are you smoking?” rebukes of the Court of Appeals for the Federal Circuit regarding patents over the past few years, so there is some hope, but such a ruling would be highly disruptive to the industry, and the Roberts court has been very pro-industry, so I think that it is a small one.

Background here.