On Monday, the ACLU filed its petition for certiorari to the Supreme Court, challenging Myriad Genetics’ patents concerning the testing of mutations in two genes, BRCA1 and BRCA2, to diagnose several forms of cancer. We’ve discussed this case at length on this blog.
Much has been written on “framing” the issues presented in a cert petition. With that in mind, it seems the ACLU has framed its primary question as broadly as the case would allow: “Are human genes patentable?” (p. i.) While I question this as a long-term strategy, it certainly hones in on exactly what the ACLU wants: to “liberate the human genome.” As for the brief’s substantive argument, it focuses on several points: (1) that human genes are “products of nature” and should therefore be patent ineligible; (2) that the “isolated and purified” doctrine–otherwise allowing one to patent a “product of nature”–should not apply; and (3) that the Court’s focus on certain patents preventing “basic” scientific research, as discussed in Mayo Collaborative Services v. Prometheus Laboratories, Inc., should apply because BRCA1 and BRCA2 patents inhibit basic cancer research.
While I’m not sure the petition really wrestles with or resolves many of the nuances regarding these doctrines,* it’s commendable in that it puts these issues squarely in the Court’s lap for an “up or down” vote. In my quick read, the petition doesn’t take any radically aggressive positions or pull any punches regarding the existing case law. (It does sweep a few bad decisions under the rug, but that’s to be expected.) It’ll now be up to the defendants (and the soon-to-be flood of amici) to call the Court’s attention to the subtleties of patent eligibility in this area. We’ll keep you posted.
* FD: I’m currently writing about these nuances, so perhaps I’m “hyper-attuned” to patent eligibility’s more basic treatment.