The Plaintiffs’ Petition. Two things are interesting about the plaintiffs’ petition from a procedural standpoint. First, the ACLU lawyers requested rehearing by the three-judge panel that decided the case earlier this summer, not en banc rehearing by all members of the court. (But a majority of the judges of the full court could still decide to rehear the case en banc; they could do so if they found that the case “involves a question of exceptional importance.”) Second, the plaintiffs have asked for rehearing on only two of the issues they lost: that isolated genes are proper subject matter for product patents, and that only one of the named plaintiffs—Dr. Harry Ostrer, formerly of NYU—has standing to bring the case. The plaintiffs did not challenge that portion of the panel’s decision that upheld—unanimously—Myriad’s patents on a method of screening potential cancer therapeutics.

On the product patent issue, the plaintiffs contend that the panel failed to give proper consideration to “whether the DNA fragments claimed in these patents are products of nature.” In support of this conclusion, they argue two points: First, they emphasize that the 2-1 majority’s focus on the chemical structure of isolated genes was misplaced, because the patent claims at issue talk about function. While isolated DNA might be literally different from naturally occurring DNA at a structural level, they argue, it is functionally identical, and thus properly characterized as products of nature. Their second point is that “DNA fragments identical to those claimed in the patents appear in the body.” Specifically, “nature breaks the covalent bonds that hold together the full chromosome” during meiotic recombination, cell replication, and double-stand breakage. Hence, Judge Lourie’s reliance on “cleavage” to distinguish isolated DNA fragments from products of nature was misplaced.

Standing and Myriad’s Petition. With respect to standing, the plaintiffs argue that at least two other named plaintiffs—the American College of Medical Genetics, of which Dr. Ostrer is a member, and Yale geneticist Ellen Matloff—are engaged in ongoing controversies with Myriad and thus have standing.

Adding these plaintiffs could prove critical, since the sole argument raised in Myriad’s petition is that Dr. Ostrer does not have standing. The original Federal Circuit opinion found that he had standing because of a controversy related to his work at NYU. As we reported, however, at the time that opinion was issued Ostrer was in the process of moving to Albert Einstein College of Medicine. Myriad now points out that the move is complete and argues, that since Ostrer’s controversy with Myriad was based entirely on his employment at NYU, the controversy is now moot. Since the standing requirement is ongoing, if the court agreed that Ostrer no longer had standing, and if it refused to find that the ACMG or Matloff or any other plaintiff had standing, then it would have to dismiss the case. (By the way, Myriad is trying to have it both ways: it asks the court to dismiss the case for lack of standing but not to withdraw its previous opinion as legal precedent.)

Tactically, the plaintiff’s petition is a little hard to understand. It makes sense to ask the court to revisit the product and method patents decisions—especially the product issue, since it was 2-1, with a strong dissent—but why not ask the whole Federal Circuit, instead of just the original panel? Perhaps their decision was to target Judge Moore, who agreed that isolated DNA is patentable, but took 31 additional pages to say why. The thinking may be that, since she didn’t sign on to Judge Lourie’s reasoning, she can be persuaded to change her mind entirely. It was also essential to raise the standing issue, since Ostrer, on whom the whole case currently depends, may be on thin ice. But again, why not raise this issue for the whole Federal Circuit?

Myriad’s approach makes more obvious sense. Having won most of the contested issues, why not stick with the original panel? Also, Myriad’s lawyers probably concluded that the substantive issue they lost—the patentability of a method of analyzing and comparing normal and mutant DNA sequences—was unwinnable. The standing issue was a closer call. If the panel rehears the case, Dr. Oster’s case might well be found to be moot. But Myriad would then risk having the generally favorable opinion withdrawn and the case simply dismissed. Why do anything to jeopardize what was, for the most part, a win?

What’s the next step? The Federal Circuit will rule, presumably fairly quickly, on the petitions for rehearing, and could also decide on its own to take the case en banc. “Cert” petitions seeking Supreme Court review would follow either a denial of rehearing or the Federal Circuit’s decision following rehearing.

For the most part, the Federal Circuit’s 2-1 decision returned the law to the state it was in before District Judge Sweet’s opinion turned things upside-down last March.  Although full of interesting rhetoric, the court’s three lengthy opinions (a total of 105 pages) are less remarkable for what they decide than for what they invite higher authorities—the Supreme Court and the Congress—to decide down the road.

First, the scorecard.  The court’s judgment—that is, the holding, or outcome—was joined by Judges Lourie and Moore.  A third member of the panel, Judge Bryson, dissented in part, meaning that he joined only a portion of the judgment (more on that below) and disagreed with another part.

The majority held as follows:

1. On the threshold procedural question of standing, the district court’s ruling was affirmed, with one plaintiff (Dr. Harry Ostrer) having sufficient standing to challenge Myriad’s patent claims.
2. Isolated genes, cDNAs and partial isolated gene sequences are patentable subject matter under § 101 of the Patent Act.  Consequently, the district court’s judgment invalidating all of Myriad’s product claims to BRCA genes and fragments was reversed in its entirety.
3. Myriad’s claims to methods of screening potential cancer therapeutics by analyzing growth rates of cells with altered BRCA genes in the presence or absence of the treatments were also held to be directed to patentable subject matter, so the district court’s judgment of invalidity was reversed here as well.
4. Myriad’s claims to methods of analyzing BRCA gene sequences and comparing those with cancer-predisposing mutations to normal or wild-type gene sequences were held not to be directed to patentable subject matter.  The district court’s decision was thus affirmed with respect to these claims.

Counting up the votes. Judge Lourie wrote the so-called “opinion of the court” that announces the judgment and gives the rationale.  Judge Moore wrote a concurring opinion, meaning that she joined all aspects of the judgment.  She also agreed with Judge Lourie’s reasoning with respect to the method claims and the patentability of isolated cDNA sequences.  However, she had a slightly different reason for upholding the patentability of DNA sequences, and decided to explain her thinking at some length (31 pages!).  Finally, Judge Bryson joined in the judgment with respect to the method claims and the patentability of longer sequences of cDNA.  However, he voted against the patentability of all isolated DNA sequences as well as very short cDNA sequences, and would thus have affirmed the district court on that specific point.  His somewhat more succinct opinion (19 pages) explains his thinking.  Since he was in the minority on this point, his opinion does not have the force of law.

So, for those keeping score at home, here is how the judges came down on each issue:

1. Standing: 3-0, since one plaintiff has standing to challenge Myriad’s patents, the case can proceed.
2. cDNA: 3-0, cDNA is patentable (although for smaller cDNA molecules, the vote was 2-1, with Bryson dissenting).
3. Method claims: 3-0, with therapeutic screening claims upheld and comparing or analyzing claims invalidated.
4. Isolated DNA: 2-1, isolated DNA is patentable.

The majority’s rationale. With the bookkeeping out of the way, let’s take a look at how the judges reasoned their way through Myriad.

The plaintiffs’ standing.  After opening with a genetics tutorial, the Lourie opinion addressed the very technical but nonetheless critical issue of standing.  As we discussed after the Myriad oral argument, standing is a constitutional question, and it boils down to whether the plaintiffs have a sufficiently direct and immediate interest in the outcome to be proper parties to file the case.  Had the court found no plaintiffs to satisfy the threshold standing requirement, it would have dismissed the case without ever reaching the patent issues.  The court found that there was standing, but it was very close.

Only one plaintiff—Dr. Harry Ostrer of (for the moment; more on that below) NYU Langone Medical Center—was held to have standing.  That was because he alleged that Myriad forced him to stop offering BRCA clinical testing more than ten years ago by threatening infringement litigation, and that he remained ready, willing, and able to resume testing if the patents were held invalid.  One plaintiff with standing was enough for the court to proceed to the merits.

It should be noted, however, that last Wednesday, just before the Federal Circuit released its opinion, counsel for Myriad submitted a letter to the court (pdf) alleging that Dr. Ostrer’s impending move from NYU to Albert Einstein College of Medicine deprives Dr. Ostrer, and thus the Myriad plaintiffs, of standing.  While the Federal Circuit apparently did not see enough in Myriad’s last-minute letter to alter its standing analysis, the letter points out, correctly, that the standing requirement is an ongoing one which must continue to be met at all points during the appellate process.  As Myriad heads through subsequent appeals (discussed below), the issue of the plaintiffs’ standing to maintain their challenge will continue to loom in the background.

Turning to the product claims (the so-called “gene patents”), Judge Lourie reviewed more than 100 years of cases dealing with all kinds of substances with natural precursors or analogs.  He identified—correctly, in our view—the two key authorities as the Supreme Court’s opinions in Chakrabarty (holding genetically engineered bacteria to be patentable subject matter) and Funk Brothers (holding unpatentable an inoculum that combined bacterial species not known to co-exist in nature).  He concluded that the test was whether the claimed substances were “markedly different—have a distinctive chemical identity and nature”—from the naturally-occurring version.

The patentability of DNA.  cDNA sequences presented the easiest question for the court.  Even Judge Bryson agreed that cDNA is generally patentable, since it is a human-made molecule and the body does not naturally contain DNA in exactly this form (with introns spliced out).  However, as discussed below, Judge Bryson would have ruled differently with respect to particularly short sequences (as few as 15 base pairs) of cDNA.

When it came to the product claims, the real controversy concerned isolated genes and sequences in DNA form.  The district court had focused on the similarity in function and information content between natural and isolated genes, downplaying the chemical and structural differences that patent lawyers and the USPTO had always relied on.  As Judge Sweet wrote last year (pdf):

DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality as it exists in the body nor the information it encodes.

Sixteen months later, Judge Lourie came down on the other side, focusing on the “cleaving” of isolated DNA out of its chromosomal environment as conclusive evidence of its fundamentally different nature.  (Curiously, he claimed that “cleaving” DNA from its chemical environment is fundamentally different from “isolating” a substance from an impure environment, which has sometimes been held insufficient to support patentability.)

The arguments about whether isolated DNA is sufficiently distinct from its natural counterpart are well-known, and neither side has an absolutely compelling case.  It seems to come down to an economic value judgment, and the Lourie and Moore opinions both reflect this reality.  Both majority judges put great emphasis on the dangers of upsetting thirty years (and 2,654 isolated DNA patents, by Judge Lourie’s count) of what Judge Moore called “settled expectations and extensive property rights.”  Both counseled deference to Congress, while Judge Lourie was “particularly wary” about a lower court expanding on an exception to patentability (the product of nature doctrine) that comes out of Supreme Court case law, not the Patent Act itself.

The method claims.  The judgments from the court on both categories of method claims were unanimous, as noted above.  Recall from our previous articles that the state of the law (such as it is) on methods generally is reflected in the Supreme Court’s confused and confusing 2010 decision in Bilski v. Kappos.  That case focuses on whether a method patent claims abstract processes (unpatentable) or specific applications (patentable), and expresses particular concern about method patents that preempt all uses of an abstract process.  In addition, Bilski held that the Federal Circuit’s machine-or-transformation (MoT) test could not be used exclusively, but could be an “important clue” to patentability.

In Bilski, the Supreme Court declined to provide any guidance for the proper application of the MoT test in a biotechnology context.  However, earlier this summer the Supreme Court agreed to review the Federal Circuit’s decision in Prometheus v. Mayo, which has twice upheld the patentability of a method of administering a drug, determining the level of the drug in a patient’s bloodstream, and then adjusting the dosage accordingly to maximize therapeutic efficacy.

Myriad’s analysis and comparison claims failed the test completely, earning a solid “F” from the Federal Circuit.  Judge Lourie wrote that such claims lack any “necessarily transformative step” and, in the end, “recite nothing more than the abstract mental steps necessary to compare two different nucleotide sequences.”

Myriad’s claim on a method of screening potential cancer therapeutics, on the other hand, was “not so manifestly abstract as to claim only a scientific principle.”  It also passed the still-breathing MoT test, since it involves the “transformative” steps of growing host cells in the presence or absence of a cancer therapeutic and then determining and comparing their growth rates.”  This was viewed as fundamentally different from simply comparing two DNA sequences.

Returning to the unpatentable claims to the analysis and comparison of DNA sequences, it is striking how much Judge Lourie emphasized the semantics of patent claim-drafting.  With Prometheus undoubtedly on their minds, Myriad’s lawyers had argued that this method actually did involve transformation.  They pointed out, for example, that here, just as in Prometheus, there was a “determining” step—in this case, of “the sequence of BRCA genes by, e.g., isolating the genes from a blood sample and sequencing them.”  Judge Lourie noted, though, that this step, while described elsewhere in the patent, was not part of the claims, by which patentable subject matter must be exclusively judged.  In Prometheus, by contrast, the determining step was in the claims.

It is hard to read this as anything but an invitation to patent lawyers to bring methods as abstract as Myriad’s within the ambit of patentable subject matter simply by putting more (perfunctory?) technical detail in the claims themselves.  As we have written previously, if clever draftsmanship is all that is ultimately required to satisfy the MoT test in many instance, the courts will have created “a potentially enormous opening through which to push all manner of personalized medicine patents replete with diagnostic, measurement, correlation and other interpretive or mental steps.”

The isolated DNA dissent. Judge Bryson argued in the same terms as the majority about the isolated DNA clams, and then reached the opposite conclusion.  Taking on Judge Lourie’s cleaving argument, he wrote that “there is no magic to a chemical bond that requires us to recognize a new product when a chemical bond is altered or broken.”  Agreeing with the district court about the paramount importance of the information content of genes, he concluded that “what is claimed in the BRCA genes is the genetic coding material, and that material is the same, structurally and functionally, in both the native gene and the isolated form of the gene.”

Perhaps more significantly, Judge Bryson also reached the opposite conclusion with respect to the economic implications of invalidating Myriad’s patents.  The—to him—“breathtakingly broad” claims to cDNA and DNA sequences as short as 15 nucleotides led Judge Bryson to look beyond the possibility of overturning biotechnology’s “settled expectations” and to the future effect of “a thicket of patents.”  This patent thicket, at least to Judge Bryson, presents “a significant obstacle to the next generation of innovation in genetic medicine—multiplex tests and whole-genome sequencing.”  He made a further point that we can confirm on the basis of our own experience: that “the costs involved in determining the scope of all those patents [in the thicket] could be prohibitive.”

Judge Bryson also departed from his colleagues in declining to give any deference to the USPTO’s 30-year practice of allowing isolated gene patents, on the grounds that it had never done any serious analysis of the subject matter issue.  Judge Bryson’s argument was buttressed by the Department of Justice’s amicus brief last fall, which advocated a dramatic departure from the PTO’s prior gene patent practice, as well as by a citation to an article by one of us (John) detailing the PTO’s limited review of these issues.

What happens next in Myriad? Since both Myriad and the plaintiffs both won and lost, both parties are eligible to seek further review, and both probably will.  One possibility is to ask the Federal Circuit for en banc review by all of its active judges (currently ten) sitting together.  This is relatively rarely granted, but more often in the Federal Circuit than in other federal courts of appeals because of its judges’ penchant for split decisions and major disagreements about fundamental doctrine.  So it is a real possibility.

After review en banc, or sooner if that appeal is not granted, both parties could petition for certiorari (cert), or further review, by the Supreme Court.  The Court grants cert in fewer than 100 cases in most years, denying the vast majority of cert petitions.  However, the Court has taken more patent cases in recent years, and this is an important one, with obvious economic and scientific implications, so it is a promising candidate.

But—remember that the Court already has Prometheus on its docket, which could settle the methods questions present in Myriad.  Among the possibilities here (yes, that was a reference to Monty Python’s Spanish Inquisition skit) are: (1) the Court takes the whole Myriad case; (2) it takes only the product claims issues, assuming that the method issues will be settled—at least for future cases—by Prometheus; (3) it takes Myriad and consolidates it wholly or in part with Prometheus, which would likely delay both cases until the 2012 term; or (4) it denies cert in Myriad and lets the Federal Circuit’s ruling stand as is.  All we can know for sure is that Myriad, still, likely has quite a ways to go before a final resolution.

What does the Myriad decision mean for the real world? First and foremost, this opinion restores—at least for the time being—the gene product patent world to the state it was in before the district court’s bolt out of the blue last spring.  So one reaction is, move along, people, nothing to see here.  But we emphasize at least for the time being.

As we said, this case has miles to go before it sleeps.  And it was a 2-1 decision, so the anti-gene patent position is neither crazy nor hopeless.  Judge Lourie ended up making a very debatable call (on how different isolated genes are from their natural counterparts) on which reasonable minds can differ.  Judge Moore was sufficiently dissatisfied with Judge Lourie’s reasoning that she took 31 pages to explain her own, ultimately (in our view) adding very little.

So there remains a high probability that there will be more said about the patentability of (in particular) isolated DNA sequences, probably by the courts (either the Federal Circuit en banc) or the Supreme Court, and possibly by Congress (if they ever manage to fix their debt ceiling distractions).

That said, how much difference will the final product patent decision in this case really make?  Myriad’s own product patents will begin to expire in 2014.  By the time Myriad wends its way through all available appeals, the biotechnology industry and clinical geneticists may have, collectively, innovated their way around the patents held by companies like Myriad.

Recall Judge Bryson’s fears about the impact on whole-gene sequencing.  Are those fears justified?  Judge Lourie repeatedly stressed cleaving the claimed isolated gene out of its natural environment.  Whatever you think of that argument in the context of the isolation of single genes, do present and forthcoming whole-genome sequencing technologies require the same cleavage?  In other words, do/will those technologies infringe patents on isolated DNA sequences using the analysis presented in Myriad?  That question has yet to be fully and formally asked, and will almost assuredly not be addressed by the Myriad litigation.  Which means that, whatever the outcome in this case, patent litigators with Ph.D.s in genetics should remain gainfully employed for the foreseeable future.

We should also look beyond the threshold question of patentability under Section 101.  As we have written previously, the real action on gene product patents is occurring under other sections of the Patent Act that deal with novelty, non-obviousness, and the written description requirement.  These sections’ requirements have been repeatedly tightened, with an overall effect of “nibbling around the edges” of gene patents, as we have put it.  The Myriad court’s reference to all of these sections—none of which is in play here—underscores the point that passing the subject matter test barely gets you out of the batter’s box, let alone to first base.

We have also written (e.g., here) that the disposition of method claims, in Myriad but also in Prometheus and other cases, will ultimately prove more important to the personalized medicine industry.  This case—unanimously—invalidates some of the broadest diagnostic method claims.  But even that rejection comes across as relatively toothless, given that Judge Lourie offered a roadmap for the alert patent lawyer to reword such claims so that they might survive.  That’s good news for those who might profit from broad method claims, cause for concern for those who might be inhibited by them, and a clear reminder that plenty more work (and, likely, litigation) is yet to come.

Ultimately, as Myriad pushes into its third year, our advice remains the same as before: keep watching—not just Myriad, but Prometheus as well, which is running slightly ahead on a parallel track—and know that, while the debt ceiling may yet cave in around us, whether the pigs will ultimately rule the gene patent sky remains to be seen.

Editor’s Note: This was first published at Genomes Unzipped and was co-authored by Daniel MacArthur and Luke Jostins. Genomes Unzipped received 12 free kits from Lumigenix for review purposes, and Dan Vorhaus has provided legal advice to the company. Genomes Unzipped plans to release a full review of the Lumigenix service in early July.

Last month three direct-to-consumer (DTC) genetic testing companies opened their mailboxes to find a slightly ominous but entirely expected letter from the FDA. The three recipients (Lumigenix, American International Biotechnology Services and Precision Quality DNA) received substantively equivalent letters, with the FDA warning each company that its genetic testing service “appears to meet the definition of a device as that term is defined in section 201(h) of the Federal Food Drug and Cosmetic Act,” and that the agency would like to meet with company representatives “to discuss whether the service [they] are promoting requires review by FDA and what information [they] would need to submit in order for [their] product to be legally marketed.”

Translated from bureaucratese, that means that the FDA views these services as ones that may need to be formally reviewed by the agency and either approved or cleared before they can be legally sold. The FDA letter asks each company to describe its service and to explain either (1) why it does not require FDA approval or (2) how the company plans to pursue such approval.

This is a strategy that the FDA has pursued with a growing cadre of DTC service providers. These letters (currently 23 and counting¹) represent the only public and company-specific actions the agency has taken to date with respect to DTC genetic testing. While many DTC letter recipients are engaged in dialogue with the FDA, those conversations have occurred beyond the public’s view. Until now.

Ending the regulation guessing game? For more than a year, the FDA has dealt with DTC genetic testing providers by mailing (and publishing) an initial letter followed by the initiation of a private dialogue and a company-specific regulatory determination. The agency has yet to publish, or even to propose, anything resembling industry-wide regulatory guidance for current or prospective personal genomics companies.

For their part, personal genomics companies have been reluctant to publicly disclose the nature of their conversations with the FDA. Recently, however, a new approach appears to be emerging, at least on the company side.

Last month, a recent DTC letter recipient (Precision Quality DNA) published a strongly worded response to the FDA on its website. Another letter recipient, Lumigenix, soon followed suit, launching a new corporate blog with the publication of its own more measured response to the agency. Each company undoubtedly has its own reasons for bucking the prevailing trend and choosing to take its conversation with the FDA into the public square. There should be little doubt, however, that the FDA’s current company-by-company approach to personal genomics regulation, which has left the industry with a considerable measure of uncertainty, was a major contributing factor in each decision. As Dan and his colleague Allain Andry noted last summer, the effects of that regulatory uncertainty can be substantial.

They include:

• Reduced access to capital. Genetic testing companies may find that investors are more cautious about making new and add-on investments.
• Fewer new products. Companies may delay plans to introduce new products both because of lack of funds and concern about the regulatory response to innovative products or business models.
• Fewer entrants. Numerous investors, and companies in related industries, have been preparing to enter into the genetic testing field. Many of those plans may be put on hold.
• Litigation risks. The well-publicized GAO report and Congressional hearings, which highlighted apparent operational deficiencies of some DTC companies, could lead to tort (e.g., negligence, emotional distress, malpractice), securities or other lawsuits from plaintiffs’ lawyers and litigious customers. Although the GAO report and Congressional investigation focused on DTC genetic tests, the broad and negative public attention focused on genetic testing could spur similar litigation against more traditional genetic testing developers and providers.
• Reduced access to technology. Companies dependent on third-party providers for some portion of their own test or business might find their options limited if regulatory uncertainty or changes discourage such collaborations.
• Encouraging overseas development. Increased regulation – or even the possibility of increased regulation – may encourage companies and investors to focus on developing new products and businesses overseas in advance of, or instead of in, the United States, with potentially detrimental consequences for patients and consumers in this country.

Current and prospective DTC genetic testing providers alike are no doubt burdened by some or all of these challenges. Lumigenix, in particular, appears hopeful that a more public DTC discussion might help to lessen the effects of regulatory uncertainty, noting at several points in its response to the FDA the company’s desire to work with the agency to develop “a clear and reasonable system of oversight for the emerging field of personal genomics.”

The challenge of “clinical” DTC claims. Perhaps the greatest area of current DTC regulatory uncertainty concerns the ability of companies to provide interpretations of personal genomic data with potential clinical or medical significance. The FDA has consistently maintained that its regulatory interest lies first and foremost with clinical genetic tests, with a test’s intended use determining whether it qualifies as clinical.

The FDA’s emphasis on clinical genetic testing has presented personal genomics companies with a dilemma: offer medically relevant personal genomic results in response to consumer demand and thereby risk stricter scrutiny from regulators, or attempt to cater to regulators (but risk losing customers) by removing or deemphasizing results that could be construed as clinical.

Personal genomics companies have deployed a variety of solutions in response to this dilemma. 23andMe, for instance, has simply braved regulatory ire by continuing to offer tests for the BRCA breast cancer risk variants, pharmacogenomic response and other serious disease mutations. Pathway Genomics responded to its own FDA letter by promptly eliminating the ability of consumers to purchase its product without physician involvement. Carrier testing company Counsyl avoided a letter entirely by dropping DTC marketing as soon as the FDA began to make serious regulatory overtures.

Lumigenix, for its part, has thus far taken an intermediate approach, steering clear of reporting on variants with unambiguous clinical relevance while maintaining DTC access to its service. In its response to the FDA, Lumigenix emphasizes that the company “strongly believes that individuals should have the right to access their own genetic information,” but explains that Lumigenix has opted to exclude certain information from its current service to avoid any clinical confusion:

In order to ensure there is no doubt about the educational purpose of our service, Lumigenix’s current service intentionally excludes certain categories of genetic tests. For that reason, Lumigenix’s does not currently include in its customers’ genomic reports results from genotype data known to be associated with or to indicate:

• carrier status for a recessive disease (e.g., Cystic Fibrosis or Tay-Sachs disease);
• pharmacogenomic status related to an individual’s likely response to certain medications (e.g., Warfarin or Clopidogrel); or
• a serious or untreatable illnesses with a large genetic component (e.g., breast cancer, Huntington’s disease or Alzheimer’s disease).

We understand that some individuals desire such results for their informational value. But we also acknowledge that the risks associated with personal genomics, including the risk that an individual will make an important medical or other decision without first consulting a healthcare professional, are not equal across all categories of genetic tests.

For that reason, Lumigenix has decided to focus its current service on providing personalized genetic information pertaining to genetic ancestry, non-medical traits and conditions, and certain relatively common medical- or health-related conditions that tend to be influenced by many genes and include a substantial environmental component.

It’s worth noting that Lumigenix is still early in its conversation with the FDA and has not yet had the same length of time to respond (e.g., in the form of modifications to its service or business model) as earlier DTC letter recipients, including 23andMe and Pathway Genomics. Lumigenix’s response does, however, hint that changes may be in store: the company applies the adjective “current” in describing its service eight separate times in its response to the FDA.

The range of approaches taken by personal genomics companies on this issue alone reflects a much broader uncertainty about the industry’s regulatory future in the hands of the FDA. The agency’s reluctance to publicly pursue a comprehensive personal genomics regulatory framework is understandable, particularly in light of the rapid pace of scientific and technological innovation and the paucity of data about DTC genetic tests and their affect on consumer behavior. Still, for so long as the FDA continues with its current private, company-by-company regulatory approach, personal genomics innovation and investment are likely to remain hampered by uncertainty.

A glimpse into the regulatory future. Interestingly, despite Lumigenix’s focus on non-medical data as part of the formal interpretations it provides to its customers, the raw data generated by the company’s genome-wide test contains plenty of medically relevant genetic variants. For example, there are at least 196 sites on the chip that match the position and sequence of known Mendelian disease mutations, including 12 in the BRCA1/2 genes and 6 in the cystic fibrosis gene CFTR². Lumigenix simply does not report on or interpret these variants, although customers can choose to explore those variants on their own, including through the use of free software such as SNPedia’s Promethease.

This approach to medically relevant personal genomic data, at first blush needlessly confusing and inefficient, is unsurprising in light of the FDA’s insistence that their regulatory target is not genomic data but the claims – particularly clinical or medical claims – made on the basis of those data. Last August, for example, reporter Mary Carmichael and Dr. Elizabeth Mansfield, Director of Personalized Medicine for the Office of In Vitro Diagnostic Device Evaluation and Safety (OIVD), had the following exchange:

[MC]: I want to move on to whether the issue with direct-to-consumer is actually providing data to people, or is it the interpretation algorithms these companies are using? So, would a company need to be approved just to provide a raw SNP list to people?
EM: They would if they made medical claims about that data. If they don’t make any medical claims about that data, then they’re free to provide information as far as we’re concerned.

Over the past year, nothing has happened that would suggest that the FDA has revised its policy on this point. This bodes well for both DTC companies and their customers because, barring a striking reversal by the FDA, high-quality personal genomic data appears likely to remain readily available, including via direct-to-consumer channels. Whatever else the FDA may have in store for the personal genomics industry, the availability of raw genomic data should enable DTC companies to remain on the market in some form.

Still, the increasing availability of raw personal genomic data will itself soon pose a challenge for the FDA. Already widely accessible and inexpensive, personal genomic data will soon transition from SNP chips to whole-genome sequences. As data proliferates alongside increasingly numerous and sophisticated publicly available software tools (like Promethease, SNPTips and Interpretome, the topic of a recent post) used to mine those data, the FDA will find that focusing on all-inclusive providers of DTC personal genomics services is insufficient. As the separation of testing (genomic data generation) from interpretation (genomic data analysis) accelerates, the FDA will be faced with a growing array of personal genomics service providers, many of whom are likely to provide software-only tools and will see no pressing need to operate from within the United States (and within easy reach of the FDA).

How the agency responds to the inevitable expansion and diversification of the personal genomics industry – e.g., with an expanded letter-writing campaign or a concerted effort to develop flexible and forward-looking industry guidance – remains to be seen.

_____________________________________________

1. The count: Pathway Genomics (May 2010); 23andMe, Navigenics, Knome, deCODE Genetics, Illumina (June 2010); Graceful Earth, SeqWright DNA Technology Services, Interleukin Genetics, DNATraits, CyGene Direct, Consumer Genetics, Matrix Genomics, The Genetic Testing Laboratories, Sequenom, EnteroLab Reference Laboratory, BioMarker Pharmaceuticals, DNA Dimensions, HealthCheckUSA, easy DNA (July 2010); Lumigenix, Precision Quality DNA, American International Biotechnology Services (May 2011).

2. Analysis by DM: I looked at the overlap between the SNPs included in my raw data from Lumigenix (available for download here) and the disease mutations in the full version of the Human Gene Mutation Database (available only via an academic collaboration or a license fee, unfortunately). I counted positions where both the position and both alleles matched. Note that this approach won’t detect disease-causing insertions and deletions, only SNPs.

Personalized Medicine’s Perception Gaps. A new report released this week by the biopharmaceuticals company Quintiles (pdf) examines the perspectives of four key stakeholder groups – biopharma executives (n=200), managed care executives (n=153), physicians (n=503) and patients (n=1,000) – across a wide range of personalized medicine issues.

The report contains a number of interesting statistical nuggets about how these groups perceive their strengths, weaknesses and future role in the advancement of personalized medicine. These include the following:

• Only 44% of biopharmaceutical executives believe that their organization provides “readily available” outcomes data to demonstrate the value of medications;
• Healthcare professionals generally agree (65%) that patients who seek out information on their own achieve better health outcomes, but more than a third (36%) believe that patients are more frequently misinformed than they were five years ago;
• Fewer than half (44%) of doctors surveyed are optimistic that the quality of healthcare will be significantly improved over the coming decade; and
• At least a third of payers (33%) and biopharma execs (38%) believe that personalized medicine will have a negative effect on job and healthcare discrimination (this despite the passage of 2008 legislation (GINA) designed to prevent discrimination on the basis of genetic information in both cases).

Perhaps the most surprising finding of all is that patients appear to be largely unfamiliar with the entire concept of personalized medicine. Only 24% of patients surveyed had previously even heard of “personalized medicine,” indicating that healthcare companies and providers alike have considerable work remaining in order to bring personalized medicine into the mainstream.

The report concludes that there is “considerable misalignment among healthcare stakeholders on various aspects of the healthcare universe.” According to the report, physicians are frustrated by payers, payers are frustrated by a complex and ill-suited regulatory regime, biopharma executives are torn between maximizing health outcomes and maximizing value to shareholders and patients are “viewed by all groups as not doing enough to improve their own healthcare.”

Clinical Trial Innovations. One major barrier to the development of increasingly personalized therapies is clinical trial recruitment. The more personalized the therapeutic or diagnostic tool in development, the more difficult it is to locate patients who satisfy the trial’s enrollment criteria.

Enter PatientsLikeMe, the patient-driven health platform, which this week announced a new feature to help match patients with clinical trials more effectively. PatientsLikeMe’s new tool will query a government database of ongoing clinical trials (ClinicalTrials.gov) and “automatically match up members of the website with every clinical trial they may be eligible for based on their conditions and location.”

Also this week, pharmaceutical giant Pfizer announced a new form of “virtual” clinical trial which, according to NatureNews, will lower barriers to clinical trial enrollment by allowing “participants to receive medication, video-conference with clinicians, and report symptoms in the comfort of their own home.”

The announcements from Pfizer and PatientsLikeMe are just the latest in a serious of innovations seeking to leverage digital and social media tools to encourage more widespread and efficient personalized medicine research.

Personalized Medicine and Cancer. Despite the many challenges it faces – from scientific complexity to regulatory, reimbursement and intellectual property regimes ill-equipped to accommodate innovation – the present and future of personalized medicine was on display this past week as thousands gathered in Chicago for the annual American Society of Clinical Oncology (ASCO) meeting (see previous news).

To help us keep up with the latest developments in oncology, Luke Timmerman of Xconomy offered a detailed wrap-up of the major developments announced at ASCO by U.S. companies. In addition, at the Consumer Genetics Conference in Boston this past week, Illumina CEO Jay Flatley announced cuts in the company’s pricing for individual whole-genome sequencing, including an attractive $10,000 price point for tumor-normal pair sequencing of cancer patients. Finally, Matthew Herper of Forbes elegantly recapped outgoing ASCO president George Sledge’s big-picture perspective on “cancer’s new era of promise and chaos.”

Whatever the challenges, it remains clear that opportunities abound for personalized medicine companies and investors. A new survey from PwC’s Health Research Institute found that consumers are willing to spend approximately $13.6 billion per year of their own money on healthcare services. It found further that more than three-quarters (76%) of the Fortune 50 is comprised of either healthcare companies or companies with a health division.

Roundup of tweets from the intersection of genomics, personalized medicine and the law:

• Troubling: 1/3 of managed care execs think personalized medicine will have negative effect on job/healthcare discrimination #quintiles
• Sad that more than 56% of MDs think that quality of healthcare will improve over next decade #quintiles
• MDs agree (65%) that patients who seek out information achieve better health outcomes, but 36% worry about patient misinformation #quintiles
• Also, managed care execs appear to have a dramatically inflated view of the value they add in educating/understanding patients #quintiles
• Note that only 44% of biopharma execs say outcomes data readily available to support value of new medications #quintiles cc @wilbanks
• Quintiles healthcare report is goldmine of data on MD, pharma, managed care & patient views http://bit.ly/jBNzx5 HT @cwhogg
• 76% of Fortune 50 companies are in healthcare or have a health division: http://bit.ly/iZaw6x HT @FierceHealth
• Re: last tweet, HIPAA as a floor, & not preemptive, will make compliance/sharing more difficult cc @wilbanks @danielg280
• Michigan court rules state law trumps HIPAA data disclosure/privacy provisions: http://bit.ly/jmeCkE
• The @Forbes NGS piece is garbage, but @matthewherper’s piece on genomic medicine & cancer remains a #mustread: http://onforb.es/iuOHrX
• Glad to see it. Hopefully would-be investors read to bottom. RT @matthewherper: I added my thoughts on the post. We agree (not surprising.)
• Health app accelerator @Rock_Health funds 11 startups, including @genomera: http://bit.ly/jWoJcI HT @InVivoBlogEllen
• Includes this gem: “[NGS] will also open door to creating superhumans w/ unusual intelligence or physical skills.” Really? @matthewherper?
• Unimpressed by @Forbes NGS article which amounts to advert for two cos ($ILMN, $LIFE) in which author holds shares: http://onforb.es/mr2jpx
• HHS releases add’l details on NIH reorg needed to produce NCATS, incl. proposed budget of $722M: http://bit.ly/makQKQ
• More clinical trial innovation: $PFE’s online-only trial aims to lower participation barriers: http://bit.ly/kX5P7B HT @bmahersciwriter
• Cont. innovation from @patientslikeme, using ClinicalTrials.gov to improve patient recruitment: http://bit.ly/joJuiP by @RyanMFierce
• My #sonyc slides from last night are online: http://bit.ly/ldIXMO Did my best to cover personal genomics in 5 slides.
• MT @LouWoodley: If you missed last night’s #sonyc on Science+Law it is now online: http://bit.ly/l4QCsO HT @science3point0
• RT @BiotechPatent: SCOTUS affirms clear & convincing standard for invalidity defense in #patent challenge http://tinyurl.com/44ga9b8
• Belated update re: House hearing on FDA med device approvals, feat. testy exchange with Shuren: http://bit.ly/m6TrhL HT @dgmacarthur
• Prev article on AUS nobel / genome publication mistakenly implies US law (GINA) prohibits life insurers from using genetic info. It doesn’t.
• RT @dgmacarthur: Awesome – Australian Nobel Laureate announces plan to publish his complete genome on the internet: http://bit.ly/j8yJyi
• Agenda here: http://bit.ly/jRmhfd Anybody live-tweeting? RT @FierceMedDev: Hatch, Hamburg, Shuren speaking at MDMA.
• Interesting. 63% (n=2137) said “yes” to FMR1. RT @PHGFoundation: Should babies be screened for untreatable disorders? http://bit.ly/k50xx8
• RT @DailyNewsGW: Roche, Merck Partner on Cancer Therapy Diagnostics: http://bit.ly/kRaB7o
• Genetic privacy may be doomed, as @razibkhan argues (http://bit.ly/jKKUY0). Question is, will that matter and, if so, what are our options?
• “Suggests online collection of self-reported data in recontactable cohort may be viable method for broad & deep phenotyping in large pop’n”
• MT @mary_carmichael: Just read @23andMe GWAS replications paper-in-progress. Neat stuff there. Congrats, @nkeriks! http://bit.ly/m0YJwb
• RT @dgmacarthur: Post on the wondrous Cambridge BioResource by @elainewestwick: http://bit.ly/ljKGjp (I’m in there too!)
• Wonderful time at #sonyc event on science & law w/ @SLSingh et al. Thx to @LouWoodley @JeanneGarb @j_timmer & rest of @S_O_NYC for invite.
• Although, to be fair, $10K for tumor/normal pair does represent a more significant price drop for $ILMN. #cgc2011
• Wonder how much extra $ILMN capacity is due to emergence of $GNOM, which is targeting $4K by 2nd half of ’11: http://bit.ly/iNrqo3 #cgc2011
• The fact that the WGS floor only dropped $2K (non-clinical drop is $10K) may be better indicator of ILMN capacity #cgc2011
• Here’s today’s $ILMN presser on WGS pricing: http://bit.ly/l9IPmB Compare to last June: http://bit.ly/j8KLeu #cgc2011
• Wish I could be at (or at least following along) #cgc2011. Follow @wimufi @davidpendletonk @RDGene & others for live tweets
• Ready for the $1K genome? 3 great posts @genomesunzipped: http://bit.ly/l7kQYEhttp://bit.ly/iqnH6vhttp://bit.ly/jfYNj1
• Pfizer ($PFE) investing $100m in Boston research collab; another attempt to bridge “valley of death”: http://bo.st/iFUcip by @Globecarolynyj
• Done panicking cell phone users, WHO shifts focus to genomic “grand challenges” for developing world: http://bit.ly/mfucTd
• Another NGS play: “sequencing by expansion” RT @DailyNewsGW: Stratos Genomics Raises $2.1M: http://bit.ly/jCzLXX
• Looking forward to participating in tonight’s #sonyc panel on Science & the Law w/ @SLSingh et al. http://bit.ly/koLQ6c
• Sen. Sanders introduces legislation (again) to reward new drugs with cash prizes, not patents: http://bit.ly/lcgm5S
• Updating the DTC Debate: Trial by PR, More FDA Letters, the Problem of Pleiotropy & New RUO Guidance http://bit.ly/jXJzHh
• RT @EdwardWinstead: RT @matthewherper: Cancer’s new era of promise and chaos. #ASCO11 #genomics http://onforb.es/jNZVtr
• Chicago for #ASCO11 to discuss current state of DTC genetic testing. For those not here, an update: http://bit.ly/jXJzHh
• RT @Sagebio: disclose full results and data to address epidemic of false claims; J. Ioannidis in SciAm http://bit.ly/jsaxDZ
• Rescheduled House committee hearing on FDA/medical devices to be held tomorrow: http://bit.ly/iDRdzz
• Follow @DNAlawyer for #UVAGEL tweets http://bit.ly/jcnHFv Muin Khoury arguing “no sci foundation” for personal genomics, incl. PGx?
• RT @dgmacarthur: More press-release scare-mongering about personal genomics – my response: http://bit.ly/j0VWxf
• NYU opening Center for Genomics and Systems Biology tomorrow: http://bit.ly/jnYIbB HT @DailyNewsGW cc @S_O_NYC
• Looks like a great program. RT @DNAlawyer: UVA GEL symposium is tomorrow and Thursday. I’ll be there. http://bit.ly/jcnHFv
• Interesting GINA proposed as a model. Focus on use makes sense; outright ban doesn’t. Health & genetic data must be used, just used properly
• NYT examines health data privacy, re-identification & control. http://nyti.ms/jlgEeu HT @FierceHealth
• MT @mary_carmichael: Study: “strong link b/w happiness & 5-HTT:” http://bit.ly/mHXjP3 More news, green jelly beans cause acne: xkcd.com/882/
• ESHG annual conf starts today, incl. plenty of anti-DTC genetic testing sentiment: http://bit.ly/iZ7fnd HT @shwu
• FDA mtg to nominally focus on analytical validity for NGS. But that’s only one part of broader debate re: FDA & next gen of clinical tools.
• More FDA: on 6/23, FDA holding public meeting on use of NGS platforms in clinical setting: http://1.usa.gov/liUKNg
• Summary of April’s FDA strategic priorities plan by@GENbio: http://bit.ly/iRhcZa Very high level, funding a challenge.
• amednews on the coming regulation of FDA medical apps: http://bit.ly/lshHTQ HT @GeneSherpas cc @mobilehealth
• Asked as an aside: how would FDA regulate Dr. Watson? (Not as far off as it appears. WGS Dx software coming soon, poses similar challenge.)
• For more on Dr. Watson, highly recommend this Feb piece from @PGxReporter: http://bit.ly/iF3VNC Major need: better data collection, sharing
• IBM’s Watson now “as good as smartest second year med student”; widespread use still 8-10 yrs out http://onforb.es/llIAO2
• 1st issue (& t-shirts) already out. RT @wilbanks: Citizen Science Quarterly, a CC licensed journal. via @doctorow http://bit.ly/lLGYjw
• British Columbia court rules against anonymous sperm & egg donation. Will rest of Canada follow suit? Will US be next? http://bit.ly/jTJADw
• Here’s the link to the survey on “the informational aspects of genetic tests” (takes ~5 min): http://bit.ly/kZjjdD
• Genetics of CF severity, a survey of DTC customers and the value of a genetic diagnosis from @genomesunzipped: http://bit.ly/mTYMQi
• Telomeres predicting lifespan? Blackburn: “that’s just silly, isn’t it?” Interview w/ @NatureNews on future of field: http://bit.ly/kEmbwp
• Update on Patent Reform Act progress in Congress from @GENbio: http://bit.ly/jZHH0l
• Poor job by NYT failing to link DNA fish fraud story to earlier teen citizen scientists http://nyti.ms/jh49yA @matthewherper @leonidkruglyak
• RT @DailyNewsGW: $MYGN Teams with Topin to Market OnDose to Oncologists: http://bit.ly/merPqJ
• $GNOM continues to raise more $, talk expansion: http://bit.ly/mwUb06
• Facebook & pharma seeking to sort out social medial policy: http://bit.ly/lek4cG
• RT @wilbanks: Bob Cook-Deegan, a living legend in the gene wars, talks about gene patents. Read. http://bit.ly/lT2n3O
• And on a Friday to boot. RT @Duncande: With my full genome sequenced (by PGP at Harvard & $GNOM), I’ve been designated “PGP 13″ – lucky 13!
• Good question MT @blaine_5: DTC ELSI issue: why aren’t bone marrow donors informed of risk of genomic analysis by bone marrow recipients?
• Authors: “to delay policy-making decisions until all poss qs answered wrt DTC unrealistic given state of field.” I agree. HT @eurogene
• Good NEJM back-&-forth re: Bloss, @EricTopol, et al.’s Feb article on effect of DTC genetic testing: http://bit.ly/lhhqbj
• Genetic Technologies Sues 10 Firms for Infringement on a Method to Determine Haplotype: http://bit.ly/imgHmE HT @blaine_5
• Inspection, Compliance Data Disclosure to Be Widened by U.S. FDA: http://bloom.bg/mJEyCi
• Survey: 2/3 of small med device & Dx firms prefer EU in seeking 1st regulatory approval. Shuren: “we’re on it”: http://bit.ly/kIjqkD
• RT @PGxReporter: In latest PGx pact w/ Population Genetics, Quintiles aims to save Pharma money & time http://bit.ly/lFbogm
• RT @PHGFoundation: Retention of cleared suspects’ DNA by police ruled unlawful http://bit.ly/lRfyIN
• +1 RT @genetics_blog: neat RT @moorejh: Topic map of all grants awarded by the #NIH in 2010 http://is.gd/IfzuzG
• Good, but won’t WGS soon obviate need for mult tests? RT @westr @DivaBiotech: New Genetic Testing Tech for IVF Embryos http://bit.ly/iHNBPc
• Nuffield launches public consultation on ethical/social issues arising from emerging biotechnologies: http://bit.ly/lf07df
• RT @rzeiger: Interesting Google job to run internal health + wellness programs. Ping me if u want to learn more http://goo.gl/ULPvF
• RT @girlscientist @ClinSeqNews: HudsonAlpha Researchers to Sequence Immune Repertoires of 10K Indiv. for 100 Diseases http://bit.ly/kQmHH3
• From Toll House cookies to gastrointestinal diagnostics. RT @DailyNewsGW: Nestle Health Science Buying Prometheus Labs: http://bit.ly/kp1IkI
• RT @InSequence: Life Tech, Gen-Probe to Collaborate on FDA Clearance for Dx Assays on CE Sequencer: http://bit.ly/jH9YiK
• The license out as the biotech end game? MT @ldtimmerman: How to make $ in biotech beyond IPO, M&A http://bit.ly/kczVun
• A new model for @23andMe? @ldtimmerman reports it is rebranding itself as “a research company”? http://bit.ly/k8ImME
• RT @matthewherper: Biopharm execs: We want to focus on the future, but investors won’t let us. http://ow.ly/51GRS
• The challenge of therapeutic success. Or “Innovations of today increase cost of innovations tomorrow”: http://bit.ly/ltLLoj HT @MishaAngrist
• GLR Post: Patent Update: Looking Beyond Section 101 & Continued Murkiness of Method Patents: http://bit.ly/ii5arT
• Precision Quality DNA (recent FDA letter: http://1.usa.gov/mgciWO) has strong feelings re: DTC reg: http://fda.pqdna.com
• Looking forward to some great brainstorming at “The Future of Pathology in Personalized Medicine”: http://bit.ly/ll5LqQ
• Great @DanielSolove column: “Why Privacy Matters Even if You Have ‘Nothing to Hide’”: http://bit.ly/lXG6O7 HT @MishaAngrist
• “The Privacy Challenge in Online Prize Contests” in NYT http://nyti.ms/kFVVgt w/ a HT to @23andMe’s consent form.
• What does the future hold for biotech & VCs? Interesting Q&A in Nature’s bioentrepreneur: http://bit.ly/ki35i3
• First VT, now CA. RT @FierceHealth: Another state considers single-payer #health system http://bit.ly/lTvRec
• RT @FierceBiotech @ScottKirsner: VCs on boards of directors: 1 not enough but > 2 is dangerous. Like martinis. -Bob Higgins @HighlandCapital
• Good. incls dedicated investment to improving reimbursement. RT @DailyNewsGW: UK Groups Investing in Pers Med Projects: http://bit.ly/lbORVW
• +1 RT @matthewherper: Should we just let athletes use performance-enhancers? Why we’re dopes about doping: http://ow.ly/4Zqc9
• Yes, re: NIH budget cuts RT @drjonboyg: the @Battelle & UMR reports show how short sighted that is given huge economic impact of NIH funding
• Collins comments on BGI at end of article also interesting. Maybe NIH funding bump if China viewed as more of a threat?
• Looming NIH budget cuts “sobering”; may drive grant success rate to “lowest in history”: http://bit.ly/jt14vo
• RT @WSJHealthBlog: The CDC’s zombie apocalypse juggernaut: next up, a video contest…..http://on.wsj.com/kShypJ cc @kashhill
• My anecdotal data similarly bleak. RT @DNAlawyer: Anecdotal data: only 2 of my undergrad students @ Duke heard of GINA before I covered it.
• Two comments: 1) pre-06/07 DTC surveys tough to compare to post-07 DTC surveys (diff products). 2) wish some actual data on GINA awareness.
• Oregon has collected data on state-led pop’n surveys of genetic testing use/awareness: http://1.usa.gov/mTMmRj HT @ewencallaway
• RT @dgmacarthur: Joe Pickrell’s discusses potential artefacts in the Science RNA-editing paper at @genomesunzipped: http://bit.ly/jUVz6t
• Note $MYGN’s planned EU expansion to begin in Germany. New Gene/Myriad headed for conflict? Prev GLR: http://bit.ly/fylYeL
• NewGene’s NGS-Based BRCA1 & BRCA2 test coming to France, Germany http://bit.ly/lXZmxk HT @MattMealiffeMD @BRCAscoop
• Missed ind. research results (IRR) & incidental findings (IF) conf (http://bit.ly/epMlQm)? Great live tweets by @genome_gov et al. #ifirr
• RT @bigs: keep liking NIH’s Kathy Hudson more & more. ‘what we want is for every (person) to be a (research participant) as well’ #IRBreform
• RT @Erika_Check: Pickrell will be posting more on possible artifacts in DNA/RNA mismatch study tomorrow @GenomesUnzipped.
• RT @Erika_Check: DNA/RNA mismatch story getting more interesting. Joe Pickrell: “many of the results reported are potentially artifactual”
• Surprised? RT @GENbio: Pres bioethics panels sometimes choose topics driven by political pressure than scientific need http://bit.ly/iIYhdN
• NIDS Eyes Next-Gen Sequencing Needs: http://bit.ly/mRQohw
• Looking forward to @crossborderbio ongoing series on “Valuation and Other Biotech Mysteries”: http://bit.ly/j8Sb5R
• RT @matthewherper: @BiotechPatent This Forbes writer thinks the idea that medical prices are closely connected to dev costs is wrong.
• Forbes columnist takes aim at impending medical device tax: http://onforb.es/jJdYIb HT @BiotechPatent
• Stem Cells: The growing pains of pluripotency: http://bit.ly/m077oj Excellent, comprehensive piece by @Erika_Check
• RT @LifeSciVC: Good to see positive trend. RT @nvca: Venture Capital Performance Continues to Improve http://bit.ly/klA8fi cc @JCainHart
• Intrigued by @HelicosUnveiled (http://bit.ly/iqLNz5) which appears to be unsanctioned PR for Helicos. Other exs of this?
• RT @EdwardWinstead: Timely… Eric Lander at NIH 5/20 11:30 a.m.: From the ‘Genetic Code’ to the ‘Genetic Code’ webcast
• Enough frustration to actually produce change? RT @NatureNews: US panel calls for reform in human subject protection http://goo.gl/fb/kS28S
• RT @MattMealiffeMD: RT @adamfeuerstein: The thing you will mostly notice about #ASCO11 abstracts is that there isn’t a ton of new data.
• RT @genome_gov: Joseph Thankuria – Informed Consent, Biobanking, and Data distribution in the Personal Genome Project #ifirr
• I look fwd to “intense criticism” forecast by @dgmacarthur. MT @Erika_Check: DNA/RNA mismatches challenge central dogma http://bit.ly/ijeWvd
• A personal genomics challenge from @blaine_5 to @genomesunzipped readers (& the rest of you as well): http://bit.ly/jUeXqB
• Telome Health suggesting monthly telomere checkups? http://bit.ly/ldvZpD (see sidebar) Great business model if you can sell it.
• Yes. Life, disability & long-term not covered by GINA (state rules vary) RT @drjonboyg: @genomicslawyer except for long term life insurance!
• Also, I don’t understand the confusion/concern about telomere testing (DTC or otherwise) & discrimination. Clearly covered by GINA.
• On DTC telomeres, #1 I would not be surprised to see another round of “come meet with us” letters from the FDA.
• While the Post tackles DTC athletics, the NYT is featuring an even newer DTC fad: telomere testing: http://nyti.ms/kKtk77
• Canada pursuing its own version of GINA (genetic nondiscrimination legislation): http://bit.ly/iA8bjC HT @mikesgene
• Medco Drug Trend Report predicts cancer drug spending could rise up to 15%/year through 2013: http://bit.ly/ioLIPn
• RT @MichelleNMeyer: @drjonboyg & @genome_gov live tweeting conf on return indiv research results (IRRs) & incidental findings (IFs) #ifirr
• HT to CDC for realizing that best way to teach emergency preparedness is via zombie apocalypse: http://on.wsj.com/kkAD0W
• Rob Stein tackles DTC genetic testing for child athletes in today’s Post: http://wapo.st/lsrkpH AIBS just received FDA ltr
• PGP-1K continues progress. MT @Duncande: It’s official, my complete genome has been sequenced! Thx to PGP (@PGorg) & $GNOM
• Chinese biotechs wrestle with transparency, cultural hurdles (NBT): http://bit.ly/jw3zcU (And you think it’s tough here)
• Interesting post on @23andMe, data sharing and “the altruism instinct”: http://bit.ly/jHfkG1
• More med companies adopting social media (& policies), but 52% say lack of FDA guidance impeding uptake: http://bit.ly/jC1tE0
• RT @MishaAngrist: ENCODE gets ENGORGED http://bit.ly/kvs7S7
• 1K genomes project update from @InSequence: http://bit.ly/lesrH3 WGS & exomes for 1K ppl, another 1K+ on the way
• Genomic Health repaid $800K in royalties due to Incyte’s failure to maintain IP: http://bit.ly/j3H1PN Lesson: pay the PTO on time
• U of Washington, Pharmigene resolve IP dispute around warfarin dosing, agree to license: http://bit.ly/joZucZ
• RT @ldtimmerman: Hood: I despair whether in US we can sequence enough ppl, families. China will. IRBs too much of an obstacle here isb2011p4
• RT @ldtimmerman: Schadt talked all about PacBio machine, not Mt. Sinai, or Sage, to this high-science audience #isb2011p4
• Good overview in NBT of NGS providers & why they are eying clinical seq as their next market opp: http://bit.ly/lYUGRS
• RT @PGxReporter: Medco to Evaluate Clinical Utility of AssureRx’s PGx Test in Guiding Psychiatric Treatment: http://bit.ly/lWZWvL
• RT @dgmacarthur: How a @23andMe test profoundly changed a woman’s life in two very different ways: http://bit.ly/jbO7Yq
• #ASCO11 abstracts come out today. @brianreid has a modest proposal to ‘socialize’ the process for 4,000+ abstracts: http://bit.ly/lZMCzy
• Upcoming debate b/w Phil Sharp & Stephen Friend (moderated by @ldtimmerman) on pro/con of open source biology: http://bit.ly/jshQ77
• European Society of Cardiology says Europe needs a “single, coordinated” system for regulating medical devices: http://bit.ly/iCelNF
• Some candid advice from @LifeSciVC on how to pitch a biotech startup to VCs: http://onforb.es/jwO8LP
• Genetics as Culture in a Consumerist Age: http://bit.ly/kPvgiX Submit a poster/presentation & come join me in Innsbruck.
• Some good talks over the weekend at #ISB2011P4, tweeting supplied by @ldtimmerman, @finchtalk, etc.
• RT @MishaAngrist: Does Pac-Bio have a PR problem? http://bit.ly/jUAFar $PACB
• Here’s @ldtimmerman detailed take to the Schadt/$PACB/Mt. Sinai move: http://bit.ly/k2xjI8 Good to see more genomics $/talent coming to NYC
• AMP position statement recommends against using brand names in companion Dx labeling: http://bit.ly/mjbpPi by @SampleGW
• RT @Sagebio: “a brilliant rebel in the field of genomics” A. Pollack on Eric Schadt move to Mnt Sinai http://nyti.ms/lIwJ7S
• RT @RyanMFierce: More buyouts to come? RT @FierceBiotech: PerkinElmer acquires Labtronics, buyouts pile up. http://bit.ly/l5owst
• Short @techreview piece on another nanopore-based seq play, Noblegen: http://bit.ly/kqAs25 Gaudy goal: 30 genomes, 15 min
• Lumigenix FDA/DTC letter (http://1.usa.gov/jxBtS6) far more conciliatory in tone than similar letters last summer (http://bit.ly/aGpLU0)
• Australian DTC company @Lumigenix receives FDA inquiry letter: http://1.usa.gov/jxBtS6
• Health Insurers Making Record Profits as Many Postpone Care: http://nyti.ms/k1jwBs via @twilli2861
• Summary of Battelle report on economic impact from Human Genome Project from @drjonboyg / @genome_gov: http://1.usa.gov/itBVMr
• RT @JohnCFierce: In-depth article from Forbes on the development of India’s biotech hubs. http://onforb.es/iesQxC
• Verghese op-ed (http://nyti.ms/mD8twZ) led to post on ‘iPatient’ (http://bit.ly/lqqR5M). Lots of work to do redefining what “patient” means.
• Hah RT @bmahersciwriter: I’m so tempted to buy plush microbes from the CSHL gift shop. Wife: What did you bring me? Me: Chlamydia. bg2011
• Detailed summary of FutureMed Day 1 from @Medgadget http://bit.ly/kq1XIc HT @daniel_kraft & congrats to @tgoetz on his new company, 1+1 Labs
• RT @matthewherper: Beating Moore’s Law Since January 2008! My post on bg2011 http://ow.ly/4U4u8
• In context, this is incredible. MT @lukejostins: GM on 1000 Genomes Project. Now have 1094 whole-genome, 977 exomes, 1542 2.5M chips BG2011
• MT @dgmacarthur: GM: Feb 2000, 98% of SNPs in sequenced individual were novel. Now # is down to ~1%. bg2011 (Gabor Marth on 1K Genomes proj)
• 41yo woman w/ BRCA mutation & recent history of Breast Cancer (NEJM): http://bit.ly/isJG0O Interesting patient perspective on testing, risks
• How to calculate your own Alzheimer’s risk, based on genetic and environmental data http://bit.ly/jZ5Dlh @genomesunzipped by @lukejostins
• RT @dgmacarthur: Key message from the meeting so far: we are assigning function to non-coding variation at an astonishing rate. bg2011
• Great idea. See @matthewherper’s latest for related. RT @bigs: Teller proposes ‘sequencing the human lifestyle’ in add. to genome #futuremed
• RT @matthewherper: What should we sequence after the genome? Mark Changizi has an interesting answer: http://onforb.es/iqmBu6
• Also includes working catalog of other public genomic data RT @razibkhan: Ashkenazi 23andMe v3 genotype for the taking: http://bit.ly/iCiKPE
• RT @genome_gov: Watch NHGRI’s Advisory Council meeting May 16, 8:30 a.m. Webcast: http://bit.ly/jsFeIA. Agenda: http://1.usa.gov/mvmMTs.
• GLR Post: New Diagnostic Guidelines & DTC Testing for Alzheimer’s Disease: http://bit.ly/mHDi6Y
• SAS forming “think tank” to look at how healthcare & life sciences cos use its analytics software: http://bit.ly/ldjJeW via @RyanMFierce
• Latest on Fabrazyme dispute: patients allege Genzyme diverting ltd drug supply to European patients: http://bit.ly/kMs3nG
• Good q. Payors have leverage, GH knows it. RT @MattMealiffeMD: can you be both payors “agent” & “neutral arbiter”? http://bit.ly/jpt0KB
• CardioDx closes out Series E to the tune of $60M, will focus on expanding reimbursement coverage: http://bit.ly/k2uvyp
• Generation Health program tackles two key challenges: lack of transparency (runs in both directions) & lack of data. Here’s hoping it works.
• Generation Health launches ambitious pilot program to bridge the gap b/w Dx providers & payors: http://bit.ly/jpt0KB
• MT @dgmacarthur: analyses of early @iontorrent data by @pathogenomenick (http://bit.ly/miHnoj) & Keith Robison (http://bit.ly/jYemtG)
• Interesting @NatureNews piece on Anil Potti & how scientists view & manage their online reputations: http://bit.ly/iHFAx8
• $GNOM update: a backlog of genomes (>2k) & plans for aggressive pricing, new machines & ~1K genomes/month by year end: http://bit.ly/mCeeJC
• RT @PGxReporter: Continuing Push to Diversify Offerings, Myriad Licenses Chronix’s Early Cancer Detection Technology: http://bit.ly/ijzK1t
• Is public’s (not scientists’) reluctance to question Bin Laden DNA ID evid. of genetic exceptionalism? http://bit.ly/jCG7me by @Erika_Check
• VA db a great potential resource. Too bad it’s relatively closed & researcher-only (i.e., no EHR linking or participant data return)
• Veterans Affairs to create genomic research database with 1M vets: http://bit.ly/m6zWSg via @PGxReporter
• RT @MishaAngrist: Of 113 med devices recalled from 05-09, 80 (71%) fast-tracked by FDA: http://bit.ly/jLNN2s (via journalistsresource.org)
• $800B or not, Jim Evans says expectations for personalized genomic info remain too high: http://bit.ly/e0eBdA HT @MishaAngrist
• RT @bmahersciwriter: Great piece dissecting the logic of an $800bn return on investment for the human genome http://bit.ly/jW0pAO
• $LIFE-funded study: $800bn = economic impact of human genome project http://on.wsj.com/lnmQkL Report http://bit.ly/mAXixa
• CDER chief Woodcock says FDA expects to issue biosimilar guidance this year: http://reut.rs/j5nlCi
• RT @lukejostins: A conversation with @elainewestwick about sharing data, newborn screening and carrying cystic fibrosis http://bit.ly/mQjdBa
• Settlement in MA wrongful birth case: http://bit.ly/jZSXBt For past GLR coverage: http://bit.ly/9u060V
• RT @InSequence: Granting PacBio’s Reexamination Request, USPTO Invalidates All Four Helicos Patents: http://bit.ly/mT4fZF
• Study on how info affects DTC genetic testing decision: http://bit.ly/ki7QqR Anybody read/have the underlying study?
• RT @dgmacarthur: Have a burning question to ask genome visionary George Church (@geochurch)? Ask away: http://bit.ly/kHX0bF (via @ianholmes)
• PerkinElmer acquires Geospiza (@finchtalk), beefing up software for DNA analysis http://bit.ly/jGYiiM by @ldtimmerman
• Recent case further evid Fed Cir may leave 101 open, tighten other patentability criteria. See: http://bit.ly/gba0FI
• Fed Cir recently invalidated pair of DNA diagnostic patents: http://bit.ly/l411JS Will try to get analysis on GLR nxt wk
• The latest PGM vs. MiSeq ad from @iontorrent is out: http://youtu.be/gStCvyGpnRU Prev discussion here: http://bit.ly/fTkxlD
• Second rd of #FDADTC comments now appearing on regulations.gov (search FDA-20111-N-0066). Expect more in coming days.
• ZyGem, Lockheed developing portable forensic DNA platform: http://bit.ly/kha4Nj Goal: ID next Bin Laden in field in < 1 hr.
• GLR Post: News Roundup: Biotech Funding & LDT Regulation: http://bit.ly/jYTzWz
• This piece on Sulston, the human genome project & the Wellcome Trust by @markgfh is simply fantastic: http://bit.ly/miiX4X
• RT @dgmacarthur: .@nilshomer has joined the genome sharing gang – his @23andMe data are publicly available under CC0: http://bit.ly/lfLM22
• GLR Post: The Next Social Media Revolution Will Occur In…Personalized Medicine? http://bit.ly/lMimh7
• BRACAnalysis drives $MYGN revenues higher; company expects Euro launch in ’12: http://bit.ly/jyQ5Yj
• Supreme Court Case on Script Data Sale Presents ‘Gray Area’ for PBM Personalized Rx Efforts: http://bit.ly/lygTKo
• FTC continues fight against pay-for-delay drug deals, chairman calls them “outrageous”: http://bloom.bg/msSVrG
• RT @crossborderbio: Based on survey of clinical research site pros RT @JohnCFierce: top 10 CROs in CenterWatch survey: http://bit.ly/moqDGu

This will, I believe, mark direct-to-consumer (DTC) genetic testing’s formal debut at ASCO. It should also serve as another reminder that, despite its relatively small numbers (both in terms of dollars and customers), DTC genetic testing continues to exert an outsized influence when it comes to conversations about the future of genomic medicine. This is particularly true when the discussion turns to appropriate policy and regulatory oversight.

In advance of ASCO, here are several items of interest from the past few weeks in DTC genetic testing.

“Trial by Press Release.” That’s exactly what Daniel MacArthur of Genetic Future termed this week’s press release from the European Society of Human Genetics (ESHG) highlighting two presentations on DTC genetic testing at the recent ESHG annual meeting.

The studies themselves have yet to be published, but preliminary findings were meant to provide new evidence that (a) the risk prediction models employed by personal genomics companies are neither perfect nor consistent and (b) clinical geneticists are skeptical of the value of DTC genetic tests.

Neither finding is surprising, although, as MacArthur points out, the first study – from Rachel Kalf of Erasmus University – will need to be published in full before its claims, including the claim that one DTC company (deCODEme) utilizes fundamentally flawed risk prediction models, can be fully vetted.

The desire to encourage greater transparency and consistency among the risk prediction models employed by DTC genetic testing companies has been expressed numerous times in the past (higher-profile examples include current NIH Director Francis Collins, genomic pioneer Craig Venter and colleagues and last summer’s GAO report) and repeatedly embraced by DTC companies themselves (see, e.g., here and here).

When it comes to debating the future of the DTC genetic testing industry there are plenty of areas of legitimate disagreement. For example, should different types of DTC tests (e.g., carrier screening vs. pharmacogenomic testing vs. genetic ancestry testing) which make different types of claims be regulated differently? And how, if at all, should the concept of utility, whether clinical or personal, be incorporated into a genetic test evaluation?

But the need to improve transparency and consistency in DTC risk prediction models already appears to be shared nearly universally among DTC stakeholders.

The second study included in the ESHG release, conducted by Heidi Howard of the University of Leuven, Belgium, includes the finding that 63% of a “representative sample of clinical geneticists” from across Europe “wanted to proscribe whole genome scans carried out by DTC companies.”

That statistic has bounced around the internet echo chamber the past few days, but, again, is it offering us anything we did not already know (or at least strongly suspect)? As MacArthur points out, asking the current cohort of genetic testing gatekeepers how they feel about being sidestepped by genetic testing companies seeking to engage directly with individuals feels slightly rhetorical:

While it is important that personal genomics companies consult with medical professionals in devising their risk prediction algorithms and interfaces, regulation of genetic testing should not be based on the views of the traditional gatekeepers of genetic information.

As both MacArthur and Razib Khan of Gene Expression note, the appropriate question to ask is not whether clinicians believe genetic tests are harmful in the hands of consumers, but whether genetic tests are actually harmful in the hands of consumers.

Thankfully, a growing list of researchers is asking that very question, including Bloss et al. (see also a recent back-and-forth in the NEJM), Kauffman et al. and the recently launched Impact of Personal Genomic Services (IPeG) study (some details here), about which my co-presenter Stacy Gray will be providing more details during today’s panel.

As the Food and Drug Administration (FDA) and others continue to wrestle with the difficult job of shaping DTC regulatory policy, the data generated by these and other studies will be critical in ensuring that any policy which eventually emerges responds to the demonstrated challenges of DTC genetic testing, and not merely to hypothesized harms.

The FDA Sends Three More DTC Letters. Speaking of the FDA, nearly a year to the day after it sent its first letter of concern to a DTC genetic testing company (Pathway Genomics), the agency sent out its latest batch of DTC letters. The recipients this time: Lumigenix, American International Biotechnology Services and Precision Quality DNA.

Much has transpired since that first FDA letter – including many more DTC letters, a Congressional hearing last summer and a closely watched advisory panel meeting earlier this spring – but for now, at least in public, the FDA is continuing to employ the same case-by-case approach to DTC genetic testing oversight it has utilized from the outset.

Not everyone is happy with the FDA’s current approach. One of the most recent companies to receive a letter, Precision Quality DNA, has devoted a section of its company website to the FDA’s handling of DTC regulation, and has published its strongly worded reply to the agency’s most recent letter.

While it would be inaccurate to characterize Precision Quality DNA’s response as representative of the views held throughout the DTC industry, several of the points the company raises – including the need for greater transparency surrounding the FDA’s review and oversight of DTC genetic testing products – seem likely to resonate with other companies, whether they are currently in dialogue with the FDA or anxiously awaiting their own letter from the agency. (A good bet for a future FDA letter: companies offering direct-to-consumer telomere measurement tests, several of which drew criticism in recent weeks for over-inflating the ability of telomere length to predict individual longevity.)

The Latest in DTC Offerings. American International Biotechnology Services (AIBioTech), another company to receive a recent DTC letter from the FDA, found itself under the FDA’s microscope thanks to its Sports X Factor Genetic Athletic Assessment Test. The test purports to “reveal a person’s genetic athletic performance indicators as well as the potential for several risk factors,” including the risk of “negative results after an injury to an individual, such as a concussion,” or the possibility of an “undiagnosed heart condition.”

AIBioTech is not the first company to attempt to combine genetic testing and athletics – we dissected offerings from Athleticode and Atlas Sports Genetics back in 2009 – but the company’s test has received additional scrutiny due to its inclusion of markers for the apolipoprotein E (APOE) gene. The APOE gene, which comes in at least three different versions or alleles (ε2, ε3 and ε4), has been shown to affect an individual’s risk of coronary heart disease, as well as for developing late-onset Alzheimer’s disease.

Providing APOE results directly to consumers raises a host of delicate ethical and legal issues, as we discussed last month when DTC veteran 23andMe unveiled APOE reporting as part of its standard service. AIBioTech has drawn criticism for largely ignoring these issues in offering its athletics-focused test. (This in addition to criticism of the scientific validity of the claims offered up by AIBioTech and other athletic genetic testing companies.)

The inclusion of APOE in the AIBioTech test also highlights one of the frequently discussed challenges of trying to regulate any genetic test – whether DTC or otherwise – on the basis of its claims or intended use. As the proliferation of genomic data continues and our collective genomic understanding grows, the number of genetic markers which exert influence upon multiple traits of varying significance is likely to rise.

APOE’s implication in both heart disease and Alzheimer’s is a classic illustration of the phenomenon of pleiotropy – the ability of a single gene to influence multiple phenotypic traits – although it is hardly the only pleiotropic gene (genes responsible for sickle-cell disease, PKU and albinism, among others, also exert pleiotropic effects). As additional pleiotropic biomarkers are identified, the notion that genetic tests should be evaluated based on their intended use is likely to come under increasing pressure. How, for instance, will regulators address a genetic ancestry test when one or more of the biomarkers employed by the test could be used to predict an individual’s genetic risk for a serious disease? While this dilemma is not a conceptually new one, as the regulatory framework for genetic testing evolves, the nonlinearity of gene-trait relationships seems likely to pose a significant challenge for regulators, clinicians and companies who would prefer the ability to provide precisely targeted genetic test results to individuals.

Regardless, the issue seems likely to be mooted in large part at the point in the not-too-distant future where individuals have routine and early access to complete whole-genome sequences. Then the issue will no longer be whether or how to provide data with the potential to help predict multiple phenotypic effects, but how to exert any control whatsoever on the interpretative tools available (including, perhaps, IBM’s Dr. Watson, which is now reportedly “as good as the smartest second year med student”) to individuals who have access to complete and portable personal genomic data.

Are You Ready for RUO? Finally, one very recent development of potential significance to the DTC industry is the applicability of the just-released FDA draft guidance for research-use-only (RUO) and investigational-use-only (IUO) in vitro diagnostic products.

Published earlier this week, the RUO/IUO guidance clarifies the rules for marketing and commercializing diagnostic products under the widely used RUO and IUO exemptions, which allow device manufacturers to avoid submitting their products under the FDA’s rigorous medical device approval pathway. (For more see this article in Pharmacogenomics Reporter.)

The draft guidance, which is open for public comment for the next 90 days, is a significant event for manufacturers of laboratory developed tests (LDTs), many of which are thought to incorporate RUO/IUO components despite being offered for clinical or diagnostic purposes. Expect LDT manufacturers and industry groups, such as the Association of Molecular Pathology and American Clinical Laboratory Association, to have plenty to say on the RUO/IUO draft guidance before the comment period expires at the end of the summer.

Less clear is what impact the RUO/IUO guidance might have on the DTC industry. As with LDTs, it is not known exactly how many DTC genetic test providers utilize RUO/IUO components in their products. However, the pairing of an RUO or IUO device with a DTC product certainly occurs. For instance, 23andMe utilizes the Illumina OmniExpress Plus in its popular DTC service. The OmniExpress is part of a family of popular DNA microarray products offered by Illumina and labeled for research use only (pdf).

This exact issue appeared last summer when the FDA included Illumina in its first batch of DTC letters following the Pathway/Walgreens dust-up. From our coverage last June:

Of all the companies receiving letters, Illumina is the only one not to offer at least one product directly to consumers (the company does offer a commercial whole-genome sequencing service, although that product requires the participation of a healthcare professional). Illumina’s letter notes that the company has “received FDA clearance or approval for several of its devices,” but not for the HumanHap550 array. “Yet Illumina is knowingly providing the HumanHap550 array to 23andMe and deCODE Genetics for clinical diagnostic use without FDA clearance or approval” despite its being labeled “For Research Use Only.” As Gutierrez notes, “…Illumina has to follow the law, and they are aware that the chips are not being used for research only.”

Although the specific product has changed over the past year, the fundamental issue has not. The new RUO/IUO guidance, if approved in its current form, places a heavier burden on providers of RUO/IUO devices to “not sell such products to laboratories they know use the product for clinical diagnostic use.”

Which brings us back to one of the fundamental tensions concerning DTC genetic testing services: whether such services are intended, at least in the eyes of the FDA, for clinical diagnostic use. While the FDA and DTC genetic testing companies may not agree on the reasonably intended uses of these services, the FDA’s draft RUO/IUO guidance threatens to insert another key player – platform technology providers, like Illumina – squarely into the middle of the DTC debate.

If the FDA continues to maintain that the genetic testing services offered by 23andMe, Lumigenix and other DTC providers are intended for use in clinical and/or diagnostic testing, the Illuminas of the world will find themselves with a difficult choice to make. They will likely be forced to (a) defy the FDA’s RUO/IUO guidance, (b) stop selling their RUO/IUO devices to DTC companies or (c) attempt to shepherd their RUO/IUO devices through the FDA’s resource-intensive medical device approval process.

Or as the FDA puts it:

FDA is aware that laboratories sometimes use IVD products labeled RUO in clinical diagnosis and that many manufacturers, importers, and distributors of IVD products labeled RUO are also aware of such use. Manufacturers who label their IVD products: “For Research Use Only. Not for use in diagnostic procedures,” should not sell such products to laboratories that they know use the product for clinical diagnostic use. If a manufacturer learns that a laboratory to which it sells its RUO-labeled IVD product is using it in clinical diagnosis, it should halt such sales or comply with FDA requirements for IVD products, including premarket review requirements, if applicable.

If it were only DTC companies utilizing RUO/IUO devices, manufacturers like Illumina might simply stop selling those devices in light of the small (current) size of the DTC industry. But because those same devices also appear to be used by a number of LDT manufacturers, who represent a much larger market, there is a strong possibility that RUO/IUO device suppliers like Illumina will seek to obtain FDA approval for those devices, hopefully while working with the FDA to keep those devices on the market in the interim to avoid interruptions to patient care (or, in the case of their DTC customers, consumer product supply).

Regardless, the next few months will bear close watching to see whether the FDA’s attempt to more strictly enforce RUO/IUO labeling results in any significant shift in the relationships between DTC genetic testing companies and their technology suppliers.

What’s Next for DTC? Remember that it was roughly this time last year when Pathway Genomics’ failed partnership with Walgreens kicked off a busy summer of DTC (and related) activities at the FDA and on Capitol Hill. Up until this week, Washington had been relatively quiet since the end of last summer, at least in public. While the RUO/IUO situation bears watching, there are some who expect this summer to bring further fireworks on a par with last year.

While several important initiatives continue to loom as possibilities – including the FDA’s long-anticipated LDT guidance and new diagnostic-focused legislation from Congress – with 2011 nearly halfway gone I continue to think that the prospects for industry-wide regulation of DTC genetic testing in 2011 remain dim.

Social Media as a Research Tool. Last month, PatientsLikeMe, an online patient community, made headlines with a study published in Nature Biotechnology in which the company analyzed self-reported data from nearly 600 patients to demonstrate that the use of lithium had no effect on the progression of amyotrophic lateral sclerosis (ALS, also known as Lou Gehrig’s disease).

The study’s findings are valuable for ALS patients, who frequently experiment with unproven treatments in an attempt to slow progression of the degenerative disease for which there is not yet an effective therapy. But the long-term impact of the study’s methodological approach, which suggests “that data reported by patients over the internet may be useful for accelerating clinical discovery and evaluating the effectiveness of drugs already in use,” should be felt far beyond the ALS community.

PatientsLikeMe was formed after the brother of two of the company’s co-founders was diagnosed with ALS. The company, which initially sought effective treatments for ALS, has broadened its focus in recent years. PatientsLikeMe now seeks to help patients representing a range of diseases manage those conditions and to help medical researchers and companies improve the way they develop treatments, including by involving both patients and social media.

The Nature Biotechnology publication is a validation of the company’s efforts and, while not a substitute for traditional clinical trials, the PatientsLikeMe approach does demonstrate that social media tools, including networks of like-minded individuals (in this case ALS patients) “can provide supplementary data to support effective decision-making in medicine and discovery.”

Or, as PatientsLikeMe Chairman and Co-Founder Jamie Heywood told Health Business Blog, the study affirms that “there is tremendous value in reconnecting researchers to the patients they are working hard to serve by changing the norm from doing research ON patients to doing research WITH patients.”

Joining the Revolution in Progress. The PatientsLikeMe study, while impressive, is just the latest development in an ongoing and increasingly widespread effort to change how personalized medicine is pursued.

Consider, for example, Hugh Rienhoff, who launched a search to find the cause of his daughter’s mysterious genetic condition and, along the way, created a non-profit company to help others tackle similar problems. Or Genomera, a Bay Area start-up which aims to provide tools to help individuals design and carry out their own, personalized research projects.

Or 23andMe, the most prominent direct-to-consumer (DTC) genetic testing company in the market today, which has already demonstrated its ability to use social media and customer-driven data to identify novel genetic associations. While those particular associations are of admittedly limited utility, 23andMe is employing the same approach to identify the causes of – and potentially a cure for – Parkinson’s disease, a disease for which Sergey Brin, the Google co-founder and the husband of 23andMe co-founder Anne Wojcicki, carries a genetic predisposition.

23andMe also recently opened recruitment for a new study, in conjunction with researchers at Stanford University, to examine how social networking impacts health behavior and research.

And there are plenty of other projects seeking to expand the role individuals and social media play in scientific and medical research, including the Personal Genome Project, Sage Bionetworks, CollabRx, Genetic Alliance and DIYgenomics, to name just a few.

A Revolution Hiding in Plain Sight. While companies like PatientsLikeMe and 23andMe have successfully leveraged social media tools to demonstrate alternative pathways for personalized medicine research, social networking alone would be insufficient to produce a true revolution in personalized medicine. Another key factor has been the dramatic increase in availability of personalized health data, particularly genomic data.

Over the past year, a spate of articles has appeared in mainstream media publications describing the alleged failure of the Human Genome Project (HGP) to live up to the lofty expectations it set for itself a decade earlier. Last fall, for example, The New York Times’ Nicholas Wade lamented that “ten years after President Bill Clinton announced that the first draft of the human genome was complete, medicine has yet to see any large part of the promised benefits.” Francis Collins, then one of the leaders of the HGP and now the head of the NIH, opined in the journal Nature that “while the promise of a revolution in human health remains quite real…it is fair to say that the [HGP] has not yet directly affected the health care of most individuals.” And Matt Ridley criticized the HGP and its successors in the pages of The Wall Street Journal for “underdelivering useful medical knowledge and overdelivering other stuff.”

Yet by focusing solely on more easily quantifiable scientific and medical advances, and dismissing all of the “other stuff,” Wade, Collins, Ridley and others have largely overlooked a crucial legacy of the HGP: the rapid and continued democratization of genomics. Over the past ten years, technological advances have made it possible for increasingly large numbers of researchers, clinicians, patients and consumers to access personal genomic data. What was once a decade-long, multi-billion dollar, public-private collaboration to obtain a single human genome now requires nothing more than a credit card, a saliva sample and a few weeks.

While there can be no doubt that the ultimate goal is an improved understanding of the mechanisms of human disease and, as a result, an improved ability to effectively and efficiently treat those diseases, we should not lose sight of the tremendous progress we have made over the past decade in democratizing genomics and changing how personalized medicine is pursued.

Last fall, in “The Failed Promise of Genomics,” Matt Ridley wrote that “…personalized genomics will struggle to say anything at all, for the simple reason that it will be too personal.” That argument never made much sense to me in large part due to one simple fact, which was beautifully articulated by Joe Pickrell of Genomes Unzipped in a post explaining why DTC genetic testing is good for research. Wrote Pickrell, “all research is driven by curiosity, and the people most curious about a disease or trait are those who have it.”

The dramatically increased personalization of many aspects of health and medicine, especially genomics, is one promise the HGP has delivered in spades. As for Ridley, after initially worrying that personalized genomics was somehow too personal, he finally decided to see for himself. Apparently prompted by the threat of FDA regulation of DTC genetic tests, Ridley recently opted in to the personalized genomics movement and appears to have come away a changed man.

Last month, writing again in The Wall Street Journal, Ridley argued that the promised genomic revolution may indeed be realized, but only if it is embraced by the masses. “Genetic knowledge, whether the high priests like it or not, is going to be a crowd-sourced phenomenon,” Ridley wrote.

Of course, as the work of PatientsLikeMe, 23andMe and others continues to demonstrate, the revolution has been ongoing for some time now. Ridley is right that it will take many more doctors, researchers, consumers, patients, policymakers and, yes, even pundits before the active involvement of individuals in personalized medicine research becomes commonplace. And he is right that the revolution will occur whether or not personalized medicine’s “high priests” – including groups like the American Medical Association – are ready for it. What Matt Ridley failed to grasp is that the revolution is already here, and now he is a part of it.

Welcome to the Revolution, Matt.

As the size of the NGS sequencing market grows and an increasing number of NGS purchasers evaluate an expanding array of providers and technologies (see William Blair’s Next-Generation Sequencing Survey), NGS companies are beginning to look beyond price points and product specs in an attempt to stand out.

Ion Torrent on the Offensive. Consider Ion Torrent, an NGS newcomer recently acquired by Life Technologies, which launched its first product (the Personal Genome Machine) a scant four months ago. Since then, Ion Torrent has announced improvements to the PGM’s output, read length and sample prep (coverage from Matthew Herper of Forbes here and here).

As it seeks to distinguish the PGM from its competitors’ products, particularly Illumina’s offerings (see J.P. Morgan’s Next Gen Sequencing Survey), Ion Torrent has added a new dimension to its PGM campaign. Ion Torrent recently launched several creative online advertisements, with its side-by-side comparison of the PGM and Illumina’s MiSeq system—modeled after Apple’s popular “I’m a Mac/I’m a PC” campaign—raising the most eyebrows.

Read the rest of this entry at Genomes Unzipped »

Continuing Uncertainty Over FDA’s 510(k) Overhaul. As we have discussed previously, in addition to overhauling the approval process for direct-to-consumer (DTC) and laboratory developed tests (LDTs), the FDA is also in the midst of a comprehensive review of its 510(k) clearance process for medical devices.

The FDA’s Centers for Devices and Radiological Health (CDRH) released proposed changes to the 510(k) program this past summer and further revised its recommendations in January after substantial industry feedback. The goal of the recommendations is to streamline the 510(k) review and clearance process while ensuring certain higher-risk devices, particularly those currently approved as substantially equivalent to existing devices, receive appropriate scrutiny.

Even with the ongoing overhaul, the FDA’s 510(k) review process drew renewed attention from two separate Congressional committees last week. On Wednesday the Senate held a hearing entitled “A Delicate Balance: FDA and the Reform of the Medical Device Approval Process.” The House followed a day later with “Pathway to FDA Medical Device Approval: Is there a Better Way?”

The Senate hearing was held before the Special Committee on Aging, in part to address concerns raised in a new GAO report which alleges that the FDA is putting patients at risk by approving high-risk medical devices under the 510(k) medical device pathway without sufficient pre-market review. The House hearing focused on “the FDA’s inconsistent application of reasonable standards for safety and effectiveness in approving medical devices, and the impact it has on American job creators.”

Overlaid on all of the FDA-proposed 510(k) changes and Congressional hearings is the forthcoming independent review of the 510(k) program by the Institute of Medicine (IOM). The IOM, whose report is due this summer, has already been criticized for failing to incorporate representatives from the medical device community into its review process. Last week, Senator John Kerry (D-MA) added his voice to the list of IOM critics, delivering an open letter to FDA head Margaret Hamburg expressing concerns with several proposed 510(k) changes and urging greater industry representation in the IOM review process.

FDA Looking Ahead to Companion Diagnostics, WGS and EHRs. Also in FDA regulatory news, long-awaited companion diagnostics guidance is in the “sign-off” stage at CDRH. The announcement was made by Elizabeth Mansfield, Director of Personalized Medicine in the CDRH’s Office of In Vitro Diagnostics (OIVD) and reported by Pharmacogenomics Reporter. FDA officials also note that similar guidance for co-developed diagnostics will likely take much longer.

Mansfield also responded to criticism that the FDA does not appear well-prepared for forthcoming regulatory challenges, including the likely rapid expansion of diagnostic tests based on whole-genome sequencing (WGS). This is a topic we have addressed several times (see, e.g., here and here), and Mansfield noted that “the FDA has formed an inter-agency, inter-departmental working group to try to discuss some of its forthcoming challenges, including whole-genome sequencing technologies.” She added that the FDA is “on top of it as we can be.”

Finally, another looming question for the FDA as it seeks to clarify its regulation of new medical technologies: will the FDA deal with the increasing prominence of electronic health records (EHRs) by regulating EHRs as medical devices? Speaking at a recent EHR conference, CDRH Director Jeffrey Shuren “acknowledged that the potential of FDA regulation [of EHRs] raises serious clinical issues and is a ‘political hot potato.’ ‘As of right now we’re not regulating EHRs, and it may turn out that we won’t,’ he said.” According to Healthcare Informatics, the FDA is likely to issue new rules for software regulation, including medical apps for mobile platforms, in either late 2011 or in 2012.

As we have written previously, the FDA will face substantial challenges over the next several years as it attempts to apply its limited regulatory resources to an expanding array of healthcare products and services, all while walking the fine line between protecting public safety and safeguard scientific and medical innovation.

Science Funding Updates. Although many federal employees anticipated a furlough earlier this month, Congress reached an eleventh hour agreement to cut $38 billion from discretionary spending and avoid a government shutdown.

We have updated the figures from our earlier roundup to show how this latest budget compromise affects federal science funding.

Even with these changes, the budget compromise for FY 2011 (pdf) is not quite complete. The CR does not mention spending for CAN (the Cures Acceleration Network), part of NIH Director Francis Collins’s hotly debated National Center for Advancing Translational Science (NCATS).

Keep in mind, too, that FY 2011 ends in September. A renewed debate later this year over science funding levels in the FY 2012 budget is a strong possibility.

Uncertainty in Newborn Screening. An area of ongoing controversy and uncertainty is the legal status of newborn screening programs, with recent litigation in Minnesota and Texas focusing attention on the issue (see prior GLR coverage).

A recent study published in Pediatrics (pdf) evaluated state laws and policies on newborn screening, including the retention of dried blood samples (DBS), which are often retained for both quality control and unrelated scientific and public health research. The study authors found that states vary widely in the treatment of newborn blood samples following initial screening. A total of 18 states appear not to have addressed DBS retention or use at all, while the remaining states “have wide variability in their policies regarding the retention and use of DBS.”

The study, which was also covered by the Genetics & Public Policy Center, is another reminder that many states lack clear legal and regulatory guidance across a range of increasingly important healthcare activities, including newborn screening. Legal harmonization will be important to support efforts seeking to improve the effectiveness and breadth of newborn screening, such as the national newborn screening clearinghouse under development by Genetic Alliance.

Roundup of tweets from the intersection of genomics, personalized medicine and the law:

• RT @GENbio: NIH and FDA Taking Partnership for Regulatory and Translational Science One Step at a Time http://bit.ly/hLvRe9
• RT @MishaAngrist: MT @matthewherper: DNA Sequencing Story Wins Pulitzer Prize http://bit.ly/fR5Vu3 Pulitzer awarded before X Prize…
• Tax, regulatory changes lead device firms to consider relocating: http://bit.ly/hTeLiL via Mass High Tech
• Biotech missing big opportunity by focusing on major mkts & “thought leaders,” ignoring Smalltown, USA http://bit.ly/gi7Brw
• Hope lessons of #sagecon will flow to this conf next month: http://bit.ly/epMlQm HT @BiotechPatent
• Favorite Latham line: “failure to find meaningful inherited genetic predispositions likely to become most profound crisis science has faced”
• “The failure of the genome” op-ed a study in alarmism, hyperbole: http://bit.ly/iayzD2 @dgmacarthur’s prior response: http://bit.ly/h8qgSb
• Do-it-yourself DNA testing: A risk or a right? http://lat.ms/gepSZu Pro/con in LA Times, incl. view from @MishaAngrist HT @Sagebio
• RT @Sagebio: 2011 Sage Bionetworks Commons Congress presentations and videos now on line http://bit.ly/dVkGyp #sagecon
• Yes. RT @bigs: @drjonboyg @dgmacarthur @matthewherper What if we think of (data) consent as process rather than event?
• Beta site for “That’s My Data”: http://bit.ly/dGD5Ot @sharonfterry @GeneticAlliance Looking forward to more.
• RT @wilbanks: $1M USD pledged by @sagebio to fund open legal tools for citizen engagement in health. Informed consent, etc. #sagecon
• RT @jasonbobe: Wonderful proposal by @sharonfterry: “That’s my data”: develop tools, help ppl liberate data from academia/industry #sagecon
• For data only, I take the under. MT @iGenomics: Lee Hood: $1000 genome in 3 year. 5-8 yrs to be cheap enough to get info into health record.
• RT @FierceBiotech: RT @celiacdisease: I love this from NIH chief Collins: Data is not the plural of anecdotes #ahcj11
• RT @finchtalk: #sagecon for the FDA, the tidal wave of data, comes to them on paper, delivered by trucks.
• Vicki Seyfert-Margolis of FDA speaking at #sagecon. @MishaAngrist @ldtimmerman @finchtalk @sharonfterry have commentary.
• Find it interesting @CompleteGenomic ($GNOM) considers WGS a “two-horse race” w/ $ILMN: http://bit.ly/e0DK70 Even if true, doubt it lasts.
• More from the “if genetic information is not perfect, it is unethical to provide it” camp: http://ind.pn/fDQmQN HT @MishaAngrist
• RT @InSequence: Complete Genomics Shipped 600 Genomes in Q1; Plans to Expand to Asia in 2013: http://bit.ly/igE3d0
• As a counterpoint, Stewart Lyman offers this FDA defense: “Why Do I Love Drug Regulation? Simple: It Keeps Us Safe” http://bit.ly/e07Dfz
• Boston Biotech biz dev conf roundup: @Xconomy http://bit.ly/hKDq84 & Globe: http://bit.ly/eQJml5 Surprise: biotech worried about pharma, FDA
• Boston Globe recalls the life of Henry Louis Gates, Sr., incl. his involvement with @PGorg: http://bo.st/f723FF
• Already seeing this, at least definitionally. RT @genome_gov: key will be if GINA’s principles incorporated into other legislation #ELSI11
• RT @westr: RT @dienekesp “Direct-to-consumer testing: if consumers are not anxious, why are policymakers?” http://bit.ly/gWPYeI #pm101 #ELSI
• RT @InSequence: 454 GS Junior Drives 1 Percent Growth in Roche’s Sequencing, Array Business in Q1: http://bit.ly/eLnsuP
• RT @dgmacarthur: Ooh, @genomera is looking for a new product designer. Smart tweeps interested in startups and DIY genomics, talk to @bigs.
• RT @wilbanks: #sagecon great example why data governance more complex than open/not open. data governance > definitions and declarations.
• Damn! I’m clearly in the wrong Cambridge! MT @dgmacarthur: celebrating DNA Day w/ @genomesunzipped crew @ The Eagle (Watson & Crick’s pub).
• RT @FierceBiotech: Biotech VC dollars rise, but deal numbers fall. http://bit.ly/g37v46
• RT @BiotechPatent: RT @MassDevice Capitol Hill Update: More medical device hearings slated for this week | MassDevice.. http://bit.ly/hMHzoz
• Idea similar to what @PGorg does, but PGP relies on information altruists. One thing clear: we must try mult models of informed consent
• On new models for genomic research, at #AAAS event yesterday Latanya Sweeney made very similar argument: informed consent as contract.
• “Genomics, Biobanks, & the Trade-Secret Model.” Science: http://bit.ly/gyJDYn non-paywall summary: http://bit.ly/dYVpTr
• Great #DNADay lineup, opportunity, gong on right now RT @mikesgene: Let’s Talk DNA : http://bit.ly/exhJZa
• RT @bmahersciwriter: Collins: grant success rate will drop below 20% in the next year. For the first time in history #ahcj11
• Post from @23andMe officially announcing new Alzehimer’s/APOE reporting: http://bit.ly/fQHawh
• RT @wilbanks: Watch out for tons of #sagecon tweets today. Filter if you don’t like open bio, watch online @ http://bit.ly/dPdUkl if you do.
• RT @dgmacarthur: To access new APOE results at @23andMe you need to pass this (entirely appropriate) lock screen: http://twitpic.com/4l1jld
• RT @dgmacarthur: Some very quick thoughts (with screenshots) on @23andMe’s new APOE Alzheimer’s risk prediction: http://bit.ly/fqYyu5
• GLR Post: Fabry Patients Ask for Rehearing of NIH March-in Petition http://bit.ly/g63ztD
• The future of personalized medicine: gene patents, DNA testing & FDA regulation http://smrt.io/dP3SAP my Q&A w/ @boonspoon on @SmartPlanet
• Off to MA for “Privacy, Autonomy & Personal Genetic Info in the Digital Age” w/ @geochurch, @zittrain et al: http://bit.ly/2jpfj
• Thx to @drjonboyg for live tweets. Recommend going back and reading them here: http://bit.ly/eCE8AW #ELSI11
• The #ELSI11 panel on WGS w/ Duke’s Bob Cook-Deegan & @MishaAngrist, @23andMe’s Joanna Mountain & NHGRI’s Jeff Schloss seemed great.
• Solve this prob, become insta-billionaire: MT @dgmacarthur @pathogenomenick timely replies to email incompatible w/ getting ‘real’ work done
• RT @bioitworld: David Dooling (Wash U.): “Uncertainty makes some ppl want to cling to guns & religion. Others cling to their data.” #BioIT11
• RT @ldtimmerman: RT @PearlF: & jobs won’t be coming back RT @matthewherper: In past decade, drug cos have cut 300K jobs. http://ow.ly/4zujT
• RT @GenomeWeb_News: Quest Deal for Celera Clears US Antitrust Review: http://bit.ly/efYRSC
• MT @humangenomeorg: OMIM (Online Mendelian Inheritance in Man®) avail through new & improved site: http://www.omim.org/
• RT @dgmacarthur: I have a guest post on solving rare diseases with exome sequencing over at the Wellcome Trust blog: http://bit.ly/fCypuq
• RT @dgmacarthur: Dan Koboldt has a typically thorough post on the new sample prep instrument from Ion Torrent: http://bit.ly/g1MJew
• Final SACGHS (R.I.P.) report on Genetics Education and Training is now avail: http://bit.ly/fiVddD
• RT @Mjoseth: April 15, listen to Dr. Rodriguez, NHGRI, speak about NIH Genomic Data Sharing Policies http://bit.ly/gpQP1W
• The latest @iontorrent upgrades (and ads) covered by @matthewherper: http://ow.ly/4zfp2 PR here: http://bit.ly/g4DjcJ
• RT @dgmacarthur MT @drjonboyg [Malia Fullerton]: Current human research protection emphasizes risk protection over respect #ELSI11
• GAO to appear at Congressional hearing, criticize FDA oversight: http://nyti.ms/ez6Iex via NYTimes #soundfamiliar?
• After revisiting ’10 biotech IPOs, @LifeSciVc finds a glimmer of hope for the ’11 class: http://bit.ly/fW0KeL
• RT @awjourn: Biotech Execs Gather in NYC to Banter about the City’s Challenges and Opportunities http://tinyurl.com/3grsx8g
• Most States Unclear About Storage, Use Of Baby Blood Samples, New GPPC Study Finds: http://bit.ly/hrYKX6
• Beyond drugs, devices & diagnostics there is “healthtech” (or the other 84% of healthcare): http://bit.ly/eLfiyA
• CollabRx Snags ASCO Partnership: http://bit.ly/eoRWPs by @ldtimmerman
• RT @daphnezohar: Pharma must innovate out of current predicament w/ new models according to @burrillreport: http://fb.me/WcJe06ka
• The @CompleteGenomic blog follows @iontorrent anti-$ILMN ad campaign as evid that WGS isn’t just for big centers anymore.
• RT @dgmacarthur: I’ll be keeping an eye on new corporate blog of @CompleteGenomic: http://bit.ly/e3J1Dz The authors are interesting guys.
• Overview of compromise FY11 budgets for science agencies: http://bit.ly/fNCo6I $260M haircut for NIH not good, but better than $1.5B
• As for GnuBio: RT @dgmacarthur: GnuBio a serious new player in seq? Maybe once they’ve sequenced more than 126 bases: http://bit.ly/hPvYsc
• Update from @Ryan_McBride on cancer diagnostic firm On-Q-ity, next-gen sequencer GNUBio, others: http://bit.ly/g30EZx
• Ditto (+ @DNAlawyer, @SmartPlanet & @san_bas as well) RT @drjonboyg: Good to see @genomicslawyer and @MishaAngrist this evening.
• Registration open for “DNA Ethical Dilemmas” w/ @amy_harmon of NY Times: http://bit.ly/bqCbOC I’m talking abt DTC & other topics on 5/19
• Eric Green: NHGRI needs to contemporize its ELSI research #ELSI11 http://t.co/WNIza6i
• FDA considering whether to regulate EHRs as medical devices: http://bit.ly/fCwn5M Another ex of difficulty of applying device regs to info.
• The Kinsella Debate Continues over Pharma versus Biotech, Worlds in Collision: http://bit.ly/fBWPHZ by @BVBigelow cc @JCainHart
• Congress getting ready to hold another round of hearings on medical device regulation: http://bit.ly/eACrmj @MassDevice
• RT @bmahersciwriter: Fabry’s patients again lobbying NIH to grant ‘march in’ rights on Fabrazyme patent. http://bit.ly/gZh1rj (1of2)
• Starts tomorrow. RT @drjonboyg: Not only will I be tweeting from #ELSI11, so will @genome_gov, who you should follow.
• RT @crossborderbio: House version of patent reform makes changes of concern for biotech & pharma, may delay passage http://bit.ly/gQyKLM
• Very interesting. Implications far beyond law. RT @NatureNews: Hungry judges dispense rough justice http://goo.gl/fb/sOaun
• A complete transcript of last month’s #FDADTC meeting is now available: http://bit.ly/eCuBfl HT to @shwu for locating it.
• Thx for having me! RT @JamesRLawrence3: @genomicslawyer Thanks for coming to speak to our PR/Law Firm class at the UNC School of Law!
• RT @pgx_reporter Myriad to Perform BRCA Companion Dx Testing for BioMarin’s PARP Inhibitor BMN 673: http://bit.ly/g752wq
• Preview of @Sagebio’s vision for a genomic commons ahead of #sagecon this Fri/Sat: http://bit.ly/fx98ey by @ldtimmerman
• RT @Ryan_McBride PatientsLikeMe opens its patient social network to people with all diseases http://bit.ly/e6xwIu
• RT @Ryan_McBride: I’m now editing FierceBiotechIT, joining Fierce as full-time editor next month! http://bit.ly/e6D6yR
• RT @JohnCFierce: Classic Third Rock startup: Substantial cash, top minds, forward-thinking development strategy. http://bit.ly/edmncy
• RT @mikesgene: DNA collection to intimidate unions – in South Korea http://bit.ly/h4grhj #GE3LS #bioethics #genome
• New pricing: $9/mo, nothing up front. RT @CeCeLMoore: Sale @23andMe tomorrow! http://tinyurl.com/3hjwjzm
• Interest != availability MT @PathwayGenomics: Australian consumers cld soon be buying food/drink based on genetics. http://cot.ag/ho7Qkl
• RT @wilbanks: startup idea in health? @Rock_Health is providing grants, office space, and time with mentors (like me!) http://bit.ly/i4X7sx
• RT @dgmacarthur: DNA hacking – short piece on the potential risks and benefits: http://bit.ly/dLMIfm (via @sociallifeofdna)
• WSJ, Senate seeking to overturn rule barring public disclosure of what MDs earn from Medicare: http://on.wsj.com/hiKeAM HT @tgoetz
• RT @JCainHart US-Chinese Therapeutics Fund raises $100M, US base in Chapel Hill – http://bit.ly/hV3ZA0
• Another effect of gov’t shutdown: SEC to skeletal staff, all IPO processing stops: http://nyti.ms/efsPq0 cc @JCainHart
• Sequencing ad wars: sign of things to come as prices fall, # of buyers rise? MT @dgmacarthur Ion Torrent’s attack ad: http://bit.ly/fLmFU9
• RT @dgmacarthur: How big pharma execs are killing their own companies: http://bit.ly/foITo6 (via @tgoetz, @wilbanks)
• Shutdown will leave NIH w/ 982 employees to oversee 281 bldgs valued @ $15B. Guess that’s one form of small government http://bit.ly/fPtIXH
• Wonderful high-level overview, incl. what happens at NIH, FDA: RT @NatureNews US shutdown: a scientist’s guide http://goo.gl/fb/RhUJz
• Glad to see @BoraZ yesterday, even if only out my car window while driving between Chapel Hill and Durham. #15-501
• RT @ASCOPost Fifth FDA Clearance Granted for MammaPrint Assay http://ow.ly/4v9mF
• GLR Post: UK Insurance Genetics Moratorium Renewed & Breast Cancer Patents, Research in the News: http://bit.ly/emplMd

What We Learned from the Myriad Oral Argument. For all of the attention focused on the Myriad oral argument, most spectators have only one very practical question: did Monday’s argument provided any meaningful clues with respect to how the Federal Circuit might rule on appeal of the lower court’s startling ruling?

In a word: no. In a few more: we learned nothing from the Myriad argument that leaves us better able to predict how the Federal Circuit will rule in this case.

That may be unsatisfying for researchers, businesses, investors, academics and many others who, having tracked the litigation since its inception, are anxious for a resolution, but it should not come as even a mild surprise.

First, as John noted last week, it is dangerous to read too much into any oral argument. While an oral argument can be a balance-tipper in a close case, there’s no guarantee that a written judicial opinion will resemble the prior courtroom conversation.

Second, and more importantly, it is unlikely to the point of practical impossibility that the Federal Circuit’s upcoming ruling in Myriad will be the last word in the case. Whatever result the court reaches is virtually certain to be appealed and, as we wrote earlier this year, there is little reason to expect that the judicial system will finally resolve the issue of gene patenting in 2011.

What Caught Our Ear in Myriad. The limited predictive value of this week’s oral argument has not stopped media and legal commentators from dissecting how the Federal Circuit is likely to rule. While there is no way to confidently predict how the Federal Circuit will rule when it issues its opinion, likely in the next 2-3 months, here are a few of the issues raised during oral argument that caught our ear:

Procedural Arguments. The court spent considerable time addressing two procedural arguments raised by Myriad (and the other defendant-appellants): (1) that the plaintiffs in the case lack standing to maintain the lawsuit (a very technical question focused on whether these plaintiffs face enough of an immediate threat from Myriad’s patents to be allowed to challenge them) and (2) that, even if the plaintiffs were to win on all of their claims, they would not get the practical outcome they want (opening up BRCA testing beyond Myriad’s monopoly) because they failed to challenge all of the Myriad patents and claims that apply to BRCA testing (redressability, in legal jargon).

Those arguments seemed to receive more attention in court than they did in the parties’ briefs. On the one hand, this may reflect nothing more than the fact that these issues come logically first – if a plaintiff lacks standing to sue a court is barred from considering that plaintiff’s substantive claims – and there was a limited amount of time available for oral argument.

Then again, the extensive procedural discussion certainly raises the possibility that the Federal Circuit might dispose of Myriad on technical procedural grounds. This view finds some support in the concerns voiced from the bench (particularly by Judge Moore) that a ruling in Myriad could have “dramatic” consequences for the biotechnology industry, and that the substantive issues surrounding the patentability of human genes might be more appropriately addressed by Congress.

A procedural ruling, however, would fail to address an issue (the patentability of genes) that has sown uncertainty throughout the industry and created a rift within the United States government.

It would also be every bit as likely to be appealed as a substantive ruling and, in the long run, would probably accomplish nothing more than delaying the inevitable. Even if Myriad is ultimately dismissed on procedural grounds, it seems highly likely that one or more of the current plaintiffs and/or Myriad’s potential commercial competitors will continue to press the issue.

Still, because Myriad is the current patent holder and dominant BRCA testing provider, a scenario in which the Federal Circuit dealt with Myriad on procedural grounds, and thereby further delayed a substantive resolution, would likely be a practical victory for Myriad.

Whole-Genome Sequencing. As soon as the discussion shifted from procedural to substantive matters, Judge Bryson posed a pointed question to Gregory Castanias, Myriad’s attorney:

To me, at least, it is an important question as to how preclusive your patent – and any other patent on any particular gene – would be if, in effect, you have to get 100, 200 or 1,000 licenses before you can sequence the genome of an individual.

The uncertain relationship between existing gene patents and emerging whole-genome sequencing technologies and services is one we first discussed nearly two years ago, and one that has been hovering at the periphery of the Myriad litigation.

On Monday Castanias struggled to answer the question directly, noting (correctly) that it would depend in part on whether the particular method of sequencing involved “using” an isolated DNA sequence covered by Myriad’s patents.

The issue was raised directly only one other time, by Christopher Hansen of the ACLU (arguing on behalf of the plaintiff-appellees) in the context of Myriad’s BRCA method claims. Those claims involve comparing or analyzing gene sequences to identify the presence of mutations corresponding to a predisposition to breast or ovarian cancer. According to Hansen, if the judges were to compare the wild-type BRCA sequence against the publicly available genome sequence from Personal Genome Project founder George Church, side-by-side on a computer screen, they would infringe Myriad’s patents.

As we move rapidly into an age where whole-genome sequence data is inexpensive and ubiquitous, and the process of genomic interpretation is increasingly separate from genomic data generation, Hansen’s example illustrates why the disposition of Myriad’s method claims may well be more important in the long run than whether isolated DNA sequences are held to be patentable. (Myriad’s method claims, incidentally, received fairly minimal treatment during oral argument, although this may simply be due to the issue appearing last in the briefs and thus coming up last in each party’s argument, when there was little time left.)

While none of the judges responded to Hansen’s hypothetical (likely due in large part to the fact that Hansen had run over his allotted time by that point), it is encouraging to see, particularly in Bryson’s earlier comment, that the court clearly recognizes the potential for conflict between gene patents and the new generation of personalized medicine products built upon whole-genome sequencing.

However, whether the Federal Circuit will address that issue when it rules on Myriad, as with every other issue, is anybody’s guess.

Composition of Matter and Gene Patents. Predictably, the most attention was devoted to the patentability under § 101 of isolated DNA sequences. Numerous hypothetical scenarios were offered up by each of the parties, and by the judges as well: diamond mines, baseball bats in trees and even a hypothetical “magical microscope” envisioned by Neal Kumar Katyal, arguing on behalf of the Department of Justice.

One concept to which the court (and particularly Judge Lourie) returned repeatedly during the course of the argument was covalent bonding. Judge Lourie focused on the importance of covalent bonds in the DNA molecule, noting that those bonds must be broken in order to isolate sections of the molecule for purposes of examination, and suggesting that breaking those bonds renders isolated DNA different from DNA in the human body.

The focus on covalent bonds may be an effort by the court, and particularly Lourie, to find a way to apply the teaching of more than a century of cases that seem to say that patentable compositions of matter must be different in kind from their natural precursors or variants. Judge Lourie (a chemist) was playing around with the breaking of the covalent bonds during “isolation” as a potential Rubicon, beyond which isolated genes might be different in kind from those in the body.

However, Lourie’s covalent bond test was not the only one proffered. The government, for its part, offered up its own “magic microscope” test. The magic microscope (a term Judge Moore found “kitschy”) would enable the direct observation of naturally occurring DNA. According to the government’s test, any DNA sequence visible through this hypothetical device (which, if DARPA has its way, might not remain hypothetical forever) would be unpatentable. On the other hand, all other molecules (including, e.g., cDNA) not occurring in precisely the same form in nature – and thus not visible through the microscope – would be patentable.

While we wait to see whether any of the tests or hypotheticals outlined in the oral argument emerge in the written Myriad opinion, the bottom line is that the court, assuming it reaches the merits of patentable subject matter, must (1) decide what different in kind means in the genetic context and (2) apply that test to “isolation,” as the Myriad patents define that term.

The Next Myriad Mile Marker. For those who are interested in diving deeper, the Federal Circuit has made an audio transcript of the hearing available on its website (mp3). For everyone else, the next significant development in the Myriad litigation will most likely be the Federal Circuit’s opinion, which should be handed down sometime in the next few months.

At that point the parties and amici will have something concrete to digest – and likely appeal – and, depending on the outcome, Myriad, its would-be competitors and clinicians, researchers and patients with an interest in BRCA testing may be put to some difficult practical decisions. Until then, however, let the waiting – and speculation – continue

Who’s on the Panel? Federal cases on appeal are almost always heard initially by a panel of three randomly selected judges. (In rare cases all the judges of a circuit will rehear the case together, or en banc—no way to predict if that will eventually happen here.) The Federal Circuit will announce the panel for this case on Monday morning on its website. As of now, all we know is that Myriad—and only Myriad—will be heard by “Panel B+.” The + means that the makeup of that panel will be different from that of Panel B, which will hear the three other cases also scheduled for this 10 a.m. session (a panel customarily hears four arguments in a session). The + designation sometimes means that one member of the regular panel (here, B) has recused (disqualified) him or herself from the case because of some conflict, necessitating a replacement.

Chief Judge Rader has already been the subject of a recusal motion by the Myriad plaintiffs (see below), and there is also speculation that the lawyer spouses of two other judges (O’Malley and Moore) may have been involved in the filing of amicus briefs. Another possibility is that the + indicates that Myriad has been assigned to a five-judge panel, a rare expedient.

As soon as the panel is announced, expect journalists to start researching what, if anything, the three members have said about gene and methods patents in prior opinions. For example, Allison Dobson and I wrote in August 2010 about a dissent by Judge Dyk in a case involving a patent on isolated pig virus DNA. In that case (Intervet v. Merial) (pdf), Judge Dyk suggested that “whether the isolated DNA molecule, separate from any applications associated with the isolated nucleotide sequence (for example, the production of a vaccine) is patentable subject matter” is an undecided question of law—a controversial statement, given the PTO’s longstanding policy of granting such patents, with apparent Federal Circuit acquiescence. The point is that Judge Dyk’s appearance on the Myriad panel would provoke a lot of speculation.

So also with Chief Judge Rader. Back in August 2010, the Myriad plaintiffs filed a motion to have him recuse himself from participating in the case because of comments he made at two legal conferences—one sponsored by the Biotechnology Industry Organization—that the plaintiffs said indicated a preexisting view that the Myriad district court decision was wrong. As we wrote at the time, his comments were so abstract that the argument seemed far-fetched. The Federal Circuit announced that it would do nothing unless and until he were assigned to the panel, and there has been no further news beyond the enigmatic +.

How Much Difference Does Oral Argument Make Anyway? Over the course of 20+ years studying the legal profession I’ve interviewed many appellate judges about the process. They all say that they go into oral argument with an open mind, ready to be persuaded. But they also acknowledge that they’ve studied the briefs and the record and have received summaries (“bench memos”) from their law clerks, so they are intimately familiar with the case being argued. The most sensible view is that oral argument can be a balance-tipper. But appellate judges are nothing like trial jurors, who learn all they know about the case in the courtroom.

Pay Attention to the Judges’ Questions—But Not Too Much. Most judges also say that they use oral argument to clarify points they don’t fully understand and to probe potential weaknesses in the parties’ cases. So judges’ questions do reflect issues that are of concern to them.

But don’t read aggressive questioning as indicating hostility toward the side being questioned. That’s just what judges do. That’s especially true if they’ve been law professors—as many Federal Circuit judges have—because that’s part of the “Socratic method” we use in class.

On the other hand, do pay attention to the lawyers’ answers. Do they have persuasive answers to hard questions? If you didn’t think the answer made sense, maybe the judge didn’t, either.

I’ll close with an anecdote that shows the danger of reading too much into oral argument. Years ago I argued a Freedom of Information Act case before the First Circuit in Boston. Future Supreme Court Justice Stephen Breyer was on the panel. He asked a hard question, but I was expecting it and crushed it. He nodded and said, “Good answer.” I thought I had it in the bag. I lost, with Breyer voting against me.