A federal district court today denied a motion to dismiss a lawsuit challenging patents on the BRCA1 and BRCA2 genes. BRCA1 and BRCA2 are dominant genes that greatly increase the chance of developing breast and ovarian cancer. The only test currently available for these genes is from Myriad Genetics, the patent holder, for $3000.
Around 20 percent of the human genome is currently patented. These patents restrict researchers and health professionals in how they are able to use the patented genes. A researcher is not able to study a patented gene without the patent owner’s approval. Similarly, geneticists are barred from testing for patented genes without approval.
The lawsuit was filed by the ACLU and the Public Patent Foundation claiming that the patents violate the First Amendment, Fourteenth Amendment, the Patent Act of 1952 and Article I, Section 8, Clause 8 of the US constitution. The lawsuit was filed against Myriad Genetics and the University of Utah Research Foundation.
Here is an excerpt from the court’s opinion:
The Plaintiffs in this action comprise a broad range of parties, including researchers, genetic counselors, medical and/or advocacy organizations, and women facing the threat of breast cancer or who are in the midst of their struggle with the illness. The challenges to the patents-in-suit raise questions of difficult legal dimensions concerning constitutional protections over the information that serves as our genetic identities and the need to adopt policies that promote scientific innovation in biomedical research. The widespread use of gene sequence information as the foundation for biomedical research means that resolution of these issues will have far-reaching implications, not only for gene-based health care and the health of millions of women facing the specter of breast cancer, but also for the future course of biomedical research… The novel circumstances presented by this action against the USPTO, the absence of any remedy provided in the Patent Act, and the important constitutional rights the Plaintiffs seek to vindicate establish subject matter jurisdiction over the Plaintiffs’ claim against the USPTO.
Read the opinion here… (.pdf)
(hat tip: Wired)