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Several Supreme Court justices are skeptical of the argument.

Can genes be patented?

Several Supreme Court justices seemed sympathetic to claims that genes themselves do not warrant patent protection during arguments Monday in a landmark intellectual property case that could determine whether genes should be in the public domain.

But during the arguments in Association for Molecular Pathology, et al. v. Myriad Genetics, the justices repeatedly took refuge in metaphors of baseball bats and chocolate-chip cookies rather than the hard science of DNA.

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The case, which could have big implications throughout the biotech industry and the growing field of genomics, involves Myriad’s patents on two of the most famous human genes, BRCA1 and BRCA2. Mutations in those genes have been linked to much a higher risk of breast and ovarian cancers. Scientists at Myriad were the first to isolate the genes. The company patented them in 1996 and has since enjoyed a monopoly on them as the only company that can provide a test for the mutations.

Most of the justices appeared comfortable with the idea of patenting methods for isolating genes, or applications of those genes, but much less so with the patenting of the genes themselves.

Justice Sonia Sotomayor said she could create a new chocolate-chip cookie but expressed skepticism that she could patent the ingredients. “I can’t imagine getting a patent on salt, flour and eggs,” she said.

Myriad’s attorney, Gregory Castanias, repeatedly said that the Myriad scientists didn’t just stumble on to something that already existed. He was pushing back against the argument that genes were “a product of nature” and therefore not subject to patents. The researchers had to determine where to “snip” the genetic code to create the gene, he said, and that a gene in isolation was different than the same sequence of molecules embedded in long strands of DNA.

“What Myriad did was create a new molecule that had never been seen by the world,” Castanias said.

He later added that “a baseball bat doesn’t exist until it’s isolated from the tree.”

But several justices seemed skeptical of the argument. Chief Justice John Roberts noted that a baseball bat is more than just cutting a tree branch in two different places.