ACLU asks Supreme Court to invalidate patents for human genes

By Eric W. Dolan
Wednesday, December 7, 2011 19:02 EDT
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The American Civil Liberties Union and the Public Patent Foundation urged the U.S. Supreme Court on Wednesday to invalidate patents for human genes associated with hereditary breast and ovarian cancer.

“We are asking the Court to rule that patent law cannot impede the rights of scientists and doctors to conduct their research and exchange ideas freely,” said Chris Hansen, staff attorney with the ACLU Speech, Privacy and Technology Project. “Something as natural as human DNA cannot be owned by a particular company.”

Myriad Genetics and the University of Utah Research Foundation hold patents on the genes BRCA1 and BRCA2. The patents give the company exclusive access to the genes, including the
right to perform diagnostic tests, which the ACLU says restricts both scientific research and patients’ access to medical care.

“Nobody ‘invents’ genes, so no one should be able to claim ownership of them,” said Daniel B. Ravicher, executive director of PUBPAT and co-counsel in the lawsuit. “We are not talking about a new drug or a new tool to fight cancer. We are talking about a genetic marker that occurs naturally in the human body. That cannot, and should not, be patented.”

In July, a divided federal appeals court held that Myriad Genetics can patent the two human genes, overturning a previous decision by a federal district court. But the court ruled that the method used to determine a patient’s risk of cancer was not patentable.

The federal appeals court ruled the genes were patentable because they were different than genes that occur in nature. In nature, genes are bonded to other genes and histone proteins. By chemically separating and isolating the gene, the company had produced “a distinct chemical entity,” the court argued.

The lawsuit, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., was filed in May 2009 on behalf of researchers, women patients, cancer survivors and scientific associations against the U.S. Patent and Trademark Office, as well as Myriad Genetics and the University of Utah Research Foundation.

The U.S. Patent and Trademark Office has already granted thousands of patents on human genes. It is estimated that nearly 20 percent of human genes are patented.

Eric W. Dolan
Eric W. Dolan
Eric W. Dolan has served as an editor for Raw Story since August 2010, and is based out of Sacramento, California. He grew up in the suburbs of Chicago and received a Bachelor of Science from Bradley University. Eric is also the publisher and editor of PsyPost. You can follow him on Twitter @ewdolan.
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