"We invest heavily in the research and development that is needed to discover and provide high-quality molecular diagnostic products that save and improve patients' lives,'' said Richard Marsh, executive vice president and general counsel at Myriad. "Strong intellectual property and patent rights in the United States are critical to fulfilling our mission."
The company says 1 million patients have benefited from its BRAC Analysis technology, and that about 250,000 such tests are performed yearly.
And officials say the average out-of-pocket expense for the testing is only about $100, a figure disputed by the plaintiffs.
All sides agree too, the BCRA testing has saved countless lives since it was first unveiled in 1996, giving at-risk women the option of having their breasts removed as a preventive measure.
But some patients have complained charging so much for a second test is "irresponsible," and a sign the bio-tech company is more interested in profits than patient care for those unable to afford the second analysis. It is a charge the company strongly denies.
Among those challenging the Myriad patents are sisters Eileen Kelly and Kathleen Maxian. Kelly was diagnosed with breast cancer at age 40.
The initial BCRA test proved negative, meaning her family members were not likely at risk. But Maxian later developed ovarian cancer. The second BART testing proved positive, meaning the siblings carry the cancer-causing mutation all along.
"It could have prevented my cancer, or at least caught it early," Maxian told CNN's Senior Medical Correspondent Elizabeth Cohen. "Now my cancer is so advanced, I have only a 20-percent chance of being alive five years from now. I'm so angry."
Money was not an issue for them, but Kelly and Maxian, along with a coalition of physician groups and genetic counselors say Myriad has not made the BART tests widely available for patients without a strong family history of these kinds of cancers.
"Myriad did not invent the human genes at issue in this case," Christopher Hansen of the ACLU told the court at argument. He is representing the plaintiffs bring the initial lawsuit. "Myriad deserves credit for having unlocked these secrets. Myriad does not deserve a patent for it."
But several justices raised concerns.
"Isolating or extracting natural products has long been considered patentable," said Justice Ruth Bader Ginsburg, echoing what the company has argued - and won in lower courts. She offered examples like "aspirin and whooping cough vaccine. How is this different from those starting as natural products?"
Justice Samuel Alito used the example of a newly discovered plant with "tremendous medicinal purposes."
"It's not just the case of taking the leaf off the tree and chewing it" to treat breast cancer. "Let's say if you do that, you'd have to eat a whole forest to get the value of this. But it's extracted and reduced to a concentrated form. That's not eligible for a patent?"
Justices Elena Kagan and Antonin Scalia put a financial spin on the question. "Why would a company incur massive investment if it cannot patent?" an isolated gene, asked Scalia. When told by Hansen that scientific "curiosity" or Nobel Prize recognition might be enough, Scalia seemed unsatisfied. "Well, that's lovely," he said somewhat sarcastically.
On the other side Myriad attorney Gregory Castanias said "the parade of horribles" raised by the plaintiffs had not happened.
"There's no dispute in this case that there has been some alteration of the isolated DNA molecules." He said there has been an "explosion in biotechnology and the successful, economically successful, technologically successful, and life-saving industry that is at the heart of these inventions."
But Kennedy disputed Castanias' assertion this patent was deserved because of "different economic values" in cutting-edge genetic science-- and that patients did not have the "human ingenuity" of the BCRA test before Myriad developed it.
"Well, we could have said that with atomic energy, with electric, but so far the choice of the patent law was that we have a uniform rule for all industries," Kennedy said. "That avoids giving special industries special subsidies, which is very important it seems to me."
Chief Justice Roberts repeated the concerns of several colleagues, when saying the gene patents were much different from those for pharmaceuticals and other medical advances.