Recent decision outlawing gene patents has limited applicability, says NY patent attorney, Ted Sabety

The recent decision in a Federal District Court in New York, USA, to strike down a patent for the breast cancer related BRCA-1 gene may not have the broad impact on the technology industry it had originally been feared to, says a New York attorney.

Ted Sabety, an intellectual property attorney with Sabety+associates in New York, notes that Judge Robert W Sweet's opinion in the Southern District of New York case In the Association for Molecular Pathology, et al, versus the US Patent and Trademark Office, et al., relies heavily on case precedent that not only pre-dates the 1952 patent statute, but was established prior to the discovery of DNA's structure and function.

'Footnote 51 on page 123 of the opinion is the only place where Judge Sweet addresses the policy implications of his decision to strike down the patent because the DNA sequence was not patentable subject matter,' notes Mr Sabety, adding: "This is one of those footnotes likely to be highly litigated in the future, as it appears to limit the holding to the 'patentability of isolated DNA.'"