The ACLU filed a lawsuit yesterday to force the U.S. Patent and Trademark Office to rescind patents given to two private companies for the genes that cause hereditary breast and ovarian cancer.
But it's not just patent rights over breast cancer genes that the ACLU seeks to overturn — they want the courts to rule that giving private companies patents over large portions of the human genome is generally unconstitutional.
The ACLU contends that patenting the genes limits research and the free flow of information, and as a result violates the First Amendment. The lawsuit also challenges genetic patenting in general, noting that about 20 percent of all human genes are patented — including genes associated with Alzheimer's disease, muscular dystrophy and asthma.
"It is absolutely our intent that upon victory this will rend invalid patents on many other genes," said Dan Ravicher, executive director of the Public Patent Foundation and a patent law professor at Yeshiva University's Benjamin N. Cardozo School of Law. "We just had to pick one case as our case."
Officials at Myriad Genetics (a Utah-based company) and the University of Utah Research Foundation, who hold the patents, declined to comment.
The ACLU contends that giving private companies genetic patents for existing genes is problematic for researching cures, among other things.
Myriad's patents give it exclusive right to perform diagnostic tests on the genes — forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing.
Those other things include issues that affect the women who carry the BCRA1 and BCRA2 genes, which often cause breast and ovarian cancer.
The company also charged $3,000 a test, possibly keeping some women from seeking preventive genetic testing, the ACLU says.
"Women whose doctors recommend genetic testing should be able to find out whether they have the gene mutations linked to breast and ovarian cancer so that they are able to make choices that could save their lives, and these patents interfere with their ability to do so," said Lenora Lapidus, director of ACLU's Women's Rights Project.
So even though the company and the foundation was just able to look at something that already existed, they get to choose who can afford to live or die? Lovely.