In a Supreme Court test of whether a company can be granted a patent on the genes in the human body, a majority of the justices indicated during Monday's oral arguments that the court is likely to rule that a human gene can’t be patented. 

It would be one thing, several of the justices said during Monday’s oral arguments, for a company to seek a patent on a test for breast cancer that was developed by analyzing a human gene, but it would be going too far to be awarded a patent on the gene itself.

"What's the difference between snipping off a piece of the liver or kidney, and seeking a patent on that, and seeking a patent on a piece of a gene?" asked Justice Sonia Sotomayor.

Justice Samuel Alito made a different analogy, to someone seeking a patent on a plant found in the Amazon rain forest that bore leaves containing a cancer cure. "You could patent the process used to get the chemical out and the use of the result, but you cannot patent the plant," he said. 

Stelios Varias / Reuters file photo

The U.S. Supreme Court in Washington

The case, Association for Molecular Pathology v. Myriad Genetics, involves a test that has helped guide more than a million women in their medical decisions. The test can determine whether the composition of their genes makes them more likely to get breast or ovarian cancer.

Myriad Genetics, a Utah company, owns patents on two parts of human genes known as BRCA 1 and BRCA 2, named for the first two letters of the words breast and cancer.

Women with mutations in those genes face up to an 85 percent risk of getting breast cancer and up to a 50 percent risk of ovarian cancer. Because of the patents, Myriad has a monopoly on performing all diagnostic tests related to BRCA 1 and BRCA 2.

In the past three decades, the federal government has granted nearly 3,000 similar patents on genetic material. Without such protection, Myriad argues, companies would be less willing to spend the money required for making genetic discoveries.

"Countless companies and investors have risked billions of dollars to research and develop advances under this promise of stable patent protection," according to Gregory Castanias, a Washington, D.C, lawyer who argued the case for Myriad.

The idea of patenting DNA material has provoked a strong debate among scientists, and many have lined up on opposite sides of the case.

"Human genes should not be patented," says James Watson, the Nobel Prize winner and co-discoverer of the double helix structure of DNA.

"Life's instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts," he says.

But a group of researchers at the University of Maryland is among those arguing just the opposite. "The costs are outweighed by the benefits stemming from the fruits of increased inventive activity," they say in their friend-of-court brief.

In the 220 years since Thomas Jefferson wrote the cornerstone of U.S. patent law, the courts have agreed on a general principle: patents protect inventions, not products of nature. A central issue in this case is whether Myriad has obtained a patent on something already in the body or has created something new.

The ACLU, representing a group of scientists, doctors, and cancer patients, claims that Myriad has merely removed from the body something that was already there -- the DNA sequence making up the BRAC 1 and BRAC 2 genes. Because it is a creation of nature, the ACLU says, it cannot be protected by a patent, even though Myriad claims that removing it is what makes it useful.

"Gold does not become patentable once taken out of a stream because it can be used in jewelry. Kidneys do not become patentable once taken out of a body because they can be transplanted," says the ACLU's Christopher Hansen.

Myriad's exclusive patent, says the ACLU, creates a monopoly that denies women the ability to seek a second opinion, based on another test of the genetic material, and dissuades other laboratories from pursuing research on the patented genes.

The ACLU also contends that because the test costs roughly $3,000, many women cannot afford it or lack the necessary insurance coverage. If the gene was not under patent protection, the ACLU says, competition would make the test cheaper.

But Myriad argues that removing the gene sequence from the body requires breaking chemical bonds that lock it into place, thereby creating a new chemical entity.

The resulting genetic materials, the company says, "were never available to the world until Myriad's scientists applied their inventive faculties to a previously undistinguished mass of genetic matter."

Myriad cites a line of cases finding patent eligibility for naturally occurring substances that were isolated and purified, including aspirin, vitamin B12, and adrenaline derived from cows.

As for availability, the company says the cost of the test is covered by private insurance, Medicare, and Medicaid. It also says many other labs provide second opinions regarding the company's test results and that thousands of researchers have done studies on the gene sequence involved, unimpeded by the patent.

The Obama administration has urged the court to be deeply skeptical of Myriad's broad claim of what can be patented. The Justice Department's brief in the case says the public interest has consistently been given precedence by the Supreme Court "in avoiding undue restrictions imposed by patents that effectively preempt natural laws and substances."   

NBC's Tom Curry contributed to this report.

This story was originally published on Mon Apr 15, 2013 4:17 AM EDT

Handing a huge legal victory to Republicans, a federal appeals court in Washington has ruled that a president can make recess appointments only during a congressional recess when the vacancies arise.

The ruling came Friday from a three-judge panel of the US Court of Appeals for the District of Columbia.  Business groups challenged last year's recess appointments to the NLRB, the National Labor Relations Board, and the court ruled today in their favor.

"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.

Last January, President Barack Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau, and by putting three new members on the NLRB. (Obama re-nominated Cordray to a full appointment at the same position on Thursday.)

"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," House Speaker John Boehner said at the time.  "I expect the courts will find the appointment to be illegitimate."

The court ruled today on a challenge to the appointments brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB. The company claimed that the president had no power to appoint the new NLRB members, and that the subsequent action by the board therefore lacked legitimacy.

At the core of the dispute is Article II of the Constitution, setting out the president's duties and authorities. They include "the power to fill up all vacancies that may happen during the recess of the Senate."

During the nation's first century, Congress was in session less than half a year. The recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to act on nominations.

"There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations," the court said today.

In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses in the summer and around holidays. 

But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that the Senate remained in session and recess appointments could not be made. Senate Republicans have since continued the pro forma practice. 

"Such short intra-session breaks are not recesses," the bottling company argued.  "Otherwise, every weekend, night, or lunch break would be a 'recess' too."

Senate Republicans joined the lawsuit. They argued that by declaring the Senate incapable of performing its functions during the pro-forma sessions, "the President usurped the Senate's control of its own procedures. And by appointing officers without the Senate's consent, he took away its right to review and reject his nominations."

The Obama Justice Department argued that the pro-forma procedures, each lasting less than a minute, are a sham and do not mean the Senate was actually in session.  "It could not provide advice or consent on presidential nominations during that 20-day period," government lawyers argue.

In agreeing to its holiday break, Justice Department lawyers note, the Senate "provided by order that 'no business' would be conducted."

The government lawyers said there's nothing mysterious about the meaning of the word recess -- "a break by the Senate from its usual business, such as periods in which the Framers anticipated that senators would return to their respective states."
 
"The pro forma sessions were not designed to permit the Senate to do business, but rather to ensure that no business was done," the Justice Department claimed.

President Obama invoked the recess appointment power 32 times during his first term to fill vacancies in full-time government positions, though he has not made any since last January's controversy. President Clinton made 95 recess appointments during his administration.  President George W. Bush used the power 99 times. 

If, as seems likely, the issue gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, stirring controversy since the beginning.