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Wednesday, November 04, 2009

Courts - Still more on "Cancer Patients Challenge the Patenting of a Gene"

On May 13, 2009 the ILB posted an entry quoting from a NY Times story by John Schwartz about "a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it." More from the story:

The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case. * * *

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.

Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged.

Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad.

This ILB entry from May 15th included links to the complaint.

Yesterday David Kravets of Wired's "Threat Level" had a long story headed "Judge OKs Challenge to Human-Gene Patents." Some quotes:

A federal judge ruled Monday that a lawsuit can move forward against the Patent and Trademark Office and the research company that was awarded exclusive rights to human genes known to detect early signs of breast and ovarian cancer.

The first-of-its-kind lawsuit by the American Civil Liberties Union and the Public Patent Foundation at the Benjamin Cardozo School of Law claims that the patents violate free speech by restricting research.

U.S. District Judge Robert W. Sweet of New York, in ruling that the case may proceed to trial, noted that the litigation might open the door to challenges of a host of other patented genes. About one-fifth of the human genome is covered under patent applications and claims.

The story includes a link to the 88-page opinion in Ass'n. for Molecular Pathology et al. v. U.S. Patent & Trademark Office, et al. (SD NY). (Here also is the complaint.)

Posted by Marcia Oddi on November 4, 2009 09:53 AM
Posted to Courts in general