Patients, Researchers File Suit to Invalidate Patents on Breast Cancer Genes

The ACLU filed suit Tuesday in the Southern District of New York seeking to invalidate patents on the BRCA1 and BRCA2 genes.

The complaint alleges violation of Article I, section 8, clause 8 of the Constitution (the “patent” clause), the First Amendment, the Fourteenth Amendment, and 35 U.S.C. section 101 (patent subject matter eligibility).

The complaint can be accessed at http://www.aclu.org/images/asset_upload_file939_39568.pdf.

With recent decisions from the Federal Circuit limiting the types of inventions that are eligible for patent protection, the time may seem ripe for this test.  The question, however, is whether challenging patents like these will ultimately advance innovation.  Perhaps limiting the enforceability of such patents might better address some of the more troubling aspects they raise.

–Brenda Simon