Lawsuit Challenges Constitutionality of U. of Utah’s Patents on Breast-Cancer Genes

The American Civil Liberties Union and the Public Patent Foundation filed suit on Tuesday to challenge the constitutionality and validity of patents on two human genes linked to breast and ovarian cancer.

The patents on the BRCA1 and BRCA2 genes belong to the University of Utah and a company called Myriad Genetics, in Salt Lake City, which pays the university for the right to use them commercially in a test it sells to patients who want to know if they have hereditary risks of developing those cancers.

The lawsuit, filed in the U.S. District Court in New York on behalf of thousands of breast-cancer and women’s health groups and a number of medical societies and academic researchers, accuses the University of Utah Research Foundation, which owns the patents, Myriad, and the U.S. Patent and Trademark Office of stifling scientific research.

According to an announcement by the ACLU and the Public Patent Foundation, the suit is the first to seek a challenge to gene patents on First Amendment grounds. The groups said the suit, if successful, could also challenge the whole notion of gene patenting in the United States. About 20 percent of all human genes are patented.

The Public Patent Foundation, which is part of the Benjamin N. Cardozo School of Law, is no stranger to patent challenges against universities. In 2006 it was one of two organizations to challenge the validity of human embryonic stem-cell patents held by the Wisconsin Alumni Research Foundation, the patenting arm of the University of Wisconsin. The patents were subsequently upheld, but the two groups are challenging that decision. —Goldie Blumenstyk