ACLU files brief in Myriad case
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

ACLU files brief in Myriad case

The ACLU and PubPat have filed their brief urging the Supreme Court to reverse the Federal Circuit’s decision upholding Myriad Genetics' gene patents

The American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) in their brief on behalf of The Association for Molecular Pathology yesterday asked the court to overturn an August 2012 decision by the Federal Circuit. That ruling for the second time upheld Myriad’s patents on the BRCA1 and BRCA2 genes, which can be used to evaluate the risk of breast and ovarian cancer.

The case was decided by the Federal Circuit in July 2011, and a petition was subsequently granted by the Supreme Court and then put on hold pending the outcome of the Court’s ruling on Mayo v Prometheus. In March, the Supreme Court found the diagnostic method patents owned by Prometheus invalid. The Myriad case was subsequently returned to the Federal Circuit, which affirmed its original decision.

In their brief, the ACLU and PUBPAT argued that Myriad’s patents should be invalidated because genes are laws of nature, and therefore ineligible for patent protection under Section 101.

The brief noted that Myriad defends its claims on the grounds that a gene becomes a human invention when isolated, or removed, from the human body.

“Under this rationale, a kidney ‘isolated’ from the body would be patentable, gold ‘isolated’ from a stream would be patentable, and leaves ‘isolated’ from trees would be patentable,” it said.

The brief also claimed that Myriad has given women inaccurate test results, while its patents prevent other laboratories from testing genes to verify the accuracy of Myriad’s data. The petitioners argued that, although not enforced by Myriad, the patents have had a “proven chilling effect on research” relating to the genes.

The ACLU is being represented by Christopher Hansen, Sandra Park, Steven Shapiro, Aden Fine and Lenora Lapidus. PUBPAT is being represented by Daniel Ravicher and Sabrina Hassan.

Myriad is being represented by a team led by Gregory Castanias, Brian Poissant and Laura Coruzzi of Jones Day.

The case should be argued before the Supreme Court in March or April and a decision is expected before June, which marks the end of the court’s term.

more from across site and ros bottom lb

More from across our site

Partners and other senior leaders must step up if they want diverse talent at their firms to thrive
European and US counsel reveal why they are (or aren't) concerned about patent quality and explain how external counsel can help
Firms such as Bird & Bird and Taylor Wessing have reported rising profits and highlighted the role of high-profile IP disputes and hires
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Lawyers in the corporate and IP practices discuss where the firm can steal a march on competitors, its growth plans in London, and why deal lawyers are ‘concertmasters’
Kathleen Gaynor, DEI specialist at Phillips Ormonde Fitzpatrick, says deliberate actions can help law firms reach diversity goals
Scott McKeown, who moved to Wolf Greenfield one year ago, says the change has helped him tap into life sciences work and advise more patent owners
The winners of our Asia-Pacific Awards 2024 will be revealed during a ceremony in Malaysia on September 26
Zach Piccolomini of Wolf Greenfield explains how to maximise your IP portfolio’s value while keeping an eye on competitors
Witnesses at a Congressional hearing debated whether reforming the ITC is necessary and considered what any changes should look like
Gift this article