ACLU Files Summary Judgment Motion Challenging Patents on Gene Sequencing

The American Civil Liberties Union Foundation and the Public Patent Foundation filed a motion for summary judgment Aug. 26 challenging the legality and constitutionality of patent claims directed to isolating and analyzing human gene sequences (Association for Molecular Pathology v. U.S. Patent and Trademark Office, S.D.N.Y, No. 09 Civ. 4515 (RWS), motion for summary judgment 8/26/09).

The legal challenge alleges nonstatutory subject matter under Section 101 of the Patent Act, 35 U.S.C. §101, in that the patents at issue fall within all three of the judicially-recognized exceptions to patentability--natural phenomena, laws of nature, and abstract ideas.

The motion also charges that the claims "constitute patents on thought, knowledge, and ideas in violation of the First Amendment." Finally, plaintiffs add that the claims also violate Art. 1, Sec. 8, Cl. 8 of the U.S. Constitution because they "impede rather than advance science."

The particular patents at issue include claims on the BRCA1 and BRCA2 genes, mutations that are correlated with increased risk of breast or ovarian cancer.

Complaint Against Legality, Constitutionality of Claims.

The original complaint was filed in the...