Intellectual Property

ACLU Suit Challenges Patents on Genes as First Amendment Violation

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A suit filed by in New York federal court challenges patents granted to a company for two genes that can be tested to determine a person’s increased risk of breast and ovarian cancers.

The suit argues such patents impede the free flow of information and violate the First Amendment, according to a press release by the American Civil Liberties Union, one of two groups representing the plaintiffs.

The company that holds the patent, Myriad Genetics, charges more than $3,000 for the genetic test for mutations on the genes, BRCA1 and BRCA2, that are associated with the increased cancer risk, the New York Times reports.

Lisbeth Ceriani, one of the plaintiffs, says she can’t afford the test she needs to determine her risk of ovarian cancer and the need to have her ovaries removed, the Times says. She has already had a double mastectomy for breast cancer and worries she has the mutation. Another plaintiff, Genae Girard, has already learned she has the genetic mutation but she wants a second opinion from another test—and there is none available because of a lack of competition.

The suit filed was filed on behalf of scientific organizations, researchers, health groups, genetic counselors and individual patients by the ACLU and the Public Patent Foundation at the Benjamin N. Cardozo law school, according to the ACLU press release.

Besides Myriad Genetics, the named defendants are the U.S. Patent and Trademark Office and another group holding the patent, the University of Utah Research Foundation.

About 20 percent of all human genes are already patented. Opponents of gene patents say they discourage scientific research. Proponents say companies can’t afford to invest in research and development without patent protection for the fruits of their work.

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