Gene Patents and the ACLU

There is a very interesting article in the New York Times written by John Schwartz about a lawsuit over a patent. The patent is directed toward a specific gene, and a test to determine the presence of that gene. The gene is associated with breast cancer and the link to ovarian cancer. Myriad Genetics owns the patent for the test, which means they did all the research to develop and validate the test. Now people are complaining because the test is not as accessible as they would like. A lawsuit is the result claiming that the patent is invalid.

I have a few thoughts on this article. First, I suspect the language is a little loose because patent invalidity is a separate question than unpatentable subject matter. I have not looked at the complaint in this case, but I suspect the claim is that the subject matter (a human gene) is not patentable. I think the test developed to determine the presence of the gene is certainly patentable. As for the gene itself, that should not be patentable, but the article hints at processes used to purify samples of the gene and those processes should be patentable. I understand the frustration from people who want to get the test done, but filing a lawsuit attacking the patent does not seem like the best route. I think the best evidence of this is the fact that the ACLU gets involved. The article only mentions that the ACLU seems to claim that the matter includes some patent law, but then appears to be more of a First Amendment issue because the patent deals with "knowledge." That seems like a huge leap in logic; how does "knowledge" fall under a First Amendment free speech claim? Also, leave it to the ACLU to take a patent law question and turn it into a question of "fundamental" free speech rights. This is a classic example of what happens when the only tool you have is a hammer, everything looks like a nail. The only thing the ACLU knows is arguing for "fair" results based on supposed, claimed "rights" they find in the Bill of Rights. I am sorry there are people that would like to have the test done, but do not seem to have the opportunity to do that. However, that does not mean the patent laws should change based on this emotional, fairness reaction.