Joe Mullin profiles the Myriad patent story. The company’s seven patents have been challenged in the US federal district court by the ACLU on behalf of a number of scientific organizations and breast cancer patients, among others.
The patents protect isolated portions of the human genome, particularly covering tests that diagnose breast and ovarian cancer.
The case was filed in May 2009 and now the Court is dealing with motions for summary judgment:
Multiple amicus briefs have been submitted on both sides, and lawyers for the plaintiffs and defendants have filed summary judgment motions that they are scheduled to argue before Sweet on February 2, 2010.
Interestingly, the plaintiffs argue the Constitution: that the patents violate the First Amendment protecting free speech (DNA being an example of speech). The plaintiffs also argue that the patents protect “parts of nature” (a violation of section 101 of the US patent code). Myriad counters by arguing that the genetic material covered is “isolated and purified” DNA, patentable as a composition of matter.
The plaintiffs raise another Constitutional argument: that the Myriad patents have no rational connection to article 1, section 8 of the Constitution that allows Congress the right to make copyright and patent grants “to promote the progress of science and the useful arts”. As Mullin writes:
The doctors’ groups argue that Myriad’s patents “can be held as a matter of law to impede rather than promote the progress of science” and should be invalidated on summary judgment. Myriad’s lawyers counter that the Supreme Court gave Congress “considerable latitude” in deciding what kind of IP policies promote the progress when it decided Eldred v. Ashcroft in 2003. That was the case in which then-Stanford Law School professor Lawrence Lessig (now at Harvard) challenged the 1998 copyright extension (and lost). The Eldred decision, argue the defendants, gives Congress wide latitude in choosing the best IP policies, and provides the USPTO with “ample bases for concluding that these patents advanced” the cause of science.