"There, you're obviously combining things and getting something new. Here you're just snipping [the genetic line], and you don't have anything new, you have something that is a part of something that has existed previous to your intervention."
The federal government is taking a somewhat middle ground: DNA itself is not patentable but so-called "cDNA" can be. Complementary DNA is artificially synthesized from the genetic template, and engineered to produce gene clones.
Use of this protein-isolating procedure, known as "tagging," is especially important in mapping and cataloguing the vast human genome.
Solicitor General Donald Verrilli also suggested Congress could create exceptions in the genetic or bio-tech testing arena, over so-called "use" patents for specific procedures.
The high court has addressed the broader issue before, and may use a 2012 decision to guide the current human gene case.
In the so-called "Mayo" case, the justices unanimously said patents could not be issued on observations of a natural phenomenon -- in this case a doctor's medical diagnosis of a patient's reaction to a drug.
"If a law of nature is not patentable, than neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself," wrote Breyer for the court in Mayo.
The current case is Association for Molecular Pathology v. Myriad Genetics (12-398).