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isolated DNA translated into patents on the genes gender disparities among certain groups of partic-
themselves. All three judges agreed with the dis- ipants in the patent system, primarily those who
missal of the method claims by Judge Sweet, with obtain patents. Some have argued that laxer patent
the exception of one claim not central to the suit. eligibility standards benefit women because more
Following further proceedings, in June 2013, the women inventors are likely to obtain patent rights
U.S. Supreme Court issued a unanimous decision (19).
in the case (1). The Court invalidated the claims on In the context of gene patents, asking “the woman
isolated DNA because what Myriad had patented question” looked beyond the role of “inventor” and
was the “genetic information encoded in the BRCA1 exposed a broader constellation of affected people.
and BRCA2 genes,” a product of nature. They found Whom do the patents harm? Who benefits from
that “its claim is concerned primarily with the infor- them? Who lacks a voice in deciding how these rights
mation contained in the genetic sequence, not with are granted and exercised?
the specific chemical composition of a particular While many genes associated with a wide range
molecule.” The Court also ruled that cDNA is not a of conditions are patented, asking about the gender
product of nature, except for cDNA that “may have no implications immediately highlighted the patents on
intervening introns to remove when creating cDNA.” the BRCA1 and BRCA2 genes. Because mutations
The decision thus overturned decades of USPTO on these genes are linked to greatly elevated risks of
policy. It reaffirmed the product of nature doctrine breast and ovarian cancer, information about whether
as a meaningful limitation on patent eligibility. Its a patient has inherited this risk is important to many
reasoning rendered invalid similar claims in thou- patients for making informed medical decisions.
sands of other patents, and it clearly expressed the The National Cancer Institute estimates that 45% to
Court’s view that patents should not be used to lock 65% of women who inherit harmful mutations will
up people’s genetic information. develop breast cancer in their lifetimes, compared to
While much has been written about the Supreme 12% of women in the general population, and have
Court’s decision and the future of Section 101 doc- an 11% to 39% risk for ovarian cancer, compared to
trine, there has been less notice of the litigation’s 1.3% of women generally (20). Women may consider
underpinnings in feminist thought and practice. The options such as increased surveillance, prophylactic
case is a rare example of a patent lawsuit intention- surgery, or chemoprevention to address cancer risk.
ally brought to further women’s rights. Focusing on Overall, mutations on these genes account for about
women’s experiences with gene patents and drawing 5% to 10% of all breast cancers and about 15% of all
on feminist analytical methods to critique the USPTO ovarian cancers.
policy were crucial to its success. The significance of the discovery of the genes and
the patents obtained on them for women was appar-
HIGHLIGHTING THE IMPACT OF PATENTS ON ent from the start. Indeed, the genes were searched
WOMEN for because of their importance to women. After
Much patent litigation involves patentees suing years of studying women whose families experienced
others for infringing on their patents, usually corpo- high rates of breast cancer, Dr. Mary-Claire King
rate entities. While parties often have disputes over announced in 1990 that she had identified a gene
the validity of specific patents, they are generally not located on chromosome 17 that was linked to hered-
motivated to challenge entire categories of patents itary breast cancer, which she named BRCA1 (21).
because they may control similar patents. The discovery immediately sparked a race to identify
In contrast, the Myriad litigation was aimed at the sequence of the gene, which Dr. Mark Skolnick
a broader public interest in ending gene patenting. and researchers at Myriad Genetics, the University
A key part of assessing how to bring the case was of Utah, the NIH, and McGill University eventually
asking “the woman question,” which investigates the accomplished (22). They applied for patents in 1995.
gender implications of a social practice or rule (18). The following year, Myriad filed for patents relating
Scholars have used this mode of analysis to look at to a second gene it sequenced on chromosome 13